Full opinion text
MEMORANDUM OPINION SUE L. ROBINSON, District Judge. I. INTRODUCTION Plaintiff MobileMedia Ideas, LLC (“MobileMedia”) brought this patent infringement action against Apple Inc. (“Apple”), alleging in its amended complaint that various Apple products infringe sixteen patents. In a memorandum opinion and order dated November 8, 2012, the court issued its claim construction and resolved several summary judgment motions. (D.I. 461; D.I. 462) A seven-day jury trial was held on December 3-11, 2012. Trial was limited to claims 5, 6, and 10 of the ’075 patent, claims 23 and 24 of the ’068 patent, and claim 73 of the ’078 patent. Except for finding no induced infringement, the jury returned a verdict in MobileMedia’s favor, finding direct infringement and validity of the ’075, ’068, and ’078 patents. (D.I. 507) Before the court is Apple’s renewed Rule 50 motion for judgment as a matter of law (“JMOL”) that the asserted claims of the ’075, ’068, and ’078 patents are invalid and not infringed or, in the alternative, for a new trial under Rule 59. (D.I. 517) The court has jurisdiction over these matters pursuant to 28 U.S.C. § 1338. II. BACKGROUND A. Procedural History MobileMedia filed this patent infringement action on March 31, 2010 against Apple and subsequently amended its complaint to assert sixteen patents in total. (D.I. 1; D.I. 8) Apple answered and asserted affirmative defenses of, inter alia, non-infringement, invalidity, unenforceability, failure to state a claim, “waiver, laches and/or estoppel,” prosecution history estoppel, and lack of standing. (D.I. 10 at ¶¶ 114-23) Apple also asserted counterclaims for declaratory judgment of non-infringement. (Id. at ¶¶ 124-208) On April 4, 2012, the parties stipulated to dismiss the claims and counterclaims related to the ’390 patent and the ’647 patent. (D.I. 263) On April 25, 2012, MobileMedia deferred four more patents (the ’080, ’477, ’012, and ’239 patents) for a later phase, leaving ten patents at issue for summary judgment. On summary judgment, the court found no direct infringement and no induced infringement of claims 1, 7, and 8 of the ’068 patent, as well as of all asserted claims of the ’231 and ’394 patents. (D.I. 461; D.I. 462) In addition, the court found invalidity of all asserted claims of the ’828 and ’942 patents, no invalidity of the asserted claims of the ’068 patent based on the asserted prior art Orbitor Video, and no anticipation of the asserted claims of the ’075, ’394, and ’155 patents based on the asserted prior art. (D.I. 461; D.I. 462) On November 15, 2012, the court excluded from trial claim 1, as amended during reexamination, as well as claims 2 and 3, of the ’078 patent. (D.I. 469) MobileMedia then chose claims of three remaining patents to assert at trial (the “asserted claims”): claims 5, 6, and 10 of the ’075 patent, claims 23 and 24 of the ’068 patent, and claim 73 of the ’078 patent. (D.I. 474; D.I. 497 at 18:11-21:10) The products accused of infringing the asserted claims were Apple’s iPhone 3G, iPhone 3GS, and iPhone 4 products (collectively, the “iPhone”). Following a seven-day trial, the jury returned a verdict on December 13, 2012 of direct infringement of all asserted claims of the ’075, ’068, and ’078 patents; validity of all asserted claims of the ’075,-’068, and ’078 patents; and no induced infringement of any asserted claims of the ’075, ’068, and ’078 patents. (D.I. 506) The court entered judgment accordingly on December 17, 2012. (D.I. 513) On January 14, 2013, Apple renewed its motion for JMOL pursuant to Federal Rule of Civil Procedure 50(b) and also moved for a new trial. (D.I. 517) B. Technology The ’075, ’068, and ’078 patents relate to a variety of technologies in information processing, computing, and mobile phones. The ’075 and ’068 patents relate to technology for rejecting, silencing, and merging second incoming calls on mobile telephones already connected to a first call, and the ’078 patent relates to cameras on mobile devices. The court discusses each patent in more detail infra. III. STANDARD A. Renewed Motion for Judgment as a Matter of Law To prevail on a renewed motion for judgment as a matter of law following a jury trial, the moving party “ ‘must show that the jury’s findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal conclusions implied [by] the jury’s verdict cannot in law be supported by those findings.’ ” Pannu v. lolab Corp., 155 F.3d 1344, 1348 (Fed.Cir.1998) (quoting Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed.Cir.1984)). “ ‘Substantial’ evidence is such relevant evidence from the record taken as a whole as might be acceptable by a reasonable mind as adequate to support the finding under review.” Perkin-Elmer Corp., 732 F.2d at 893. In assessing the sufficiency of the evidence, the court must give the non-moving party, “as [the] verdict winner, the benefit of all logical inferences that could be drawn from the evidence presented, resolve all conflicts in the evidence in his favor, and in general, view the record in the light most favorable to him.” Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1348 (3d Cir.1991); Perkin-Elmer Corp., 732 F.2d at 893. The court may not determine the credibility of the witnesses nor “substitute its choice for that of the jury between conflicting elements of the evidence.” Perkin-Elmer Corp., 732 F.2d at 893. In sum, the court must determine whether the evidence reasonably supports the jury’s verdict. See Dawn Equip. Co. v. Kentucky Farms Inc., 140 F.3d 1009, 1014 (Fed.Cir.1998). B. Motion for a New Trial Federal Rule of Civil Procedure 59(a) provides, in pertinent part: A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. Fed. R. Civ. P. 59(a). The decision to grant or deny a new trial is within the sound discretion of the trial court and, unlike the standard for determining judgment as a matter of law, the court need not view the evidence in the light most favorable to the verdict winner. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980); Olefins Trading, Inc. v. Han Yang Chem. Corp., 9 F.3d 282 (1993); LifeScan Inc. v. Home Diagnostics, Inc., 103 F.Supp.2d 345, 350 (D.Del.2000) (citations omitted); see also 9A Wright & Miller, Federal Practice and Procedure § 2531 (2d ed. 1994) (“On a motion for new trial the court may consider the credibility of witnesses and the weight of the evidence.”). Among the most common reasons for granting a new trial are: (1) the jury’s verdict is against the clear weight of the evidence, and a new trial must be granted to prevent a miscarriage of justice; (2) newly-discovered evidence exists that would likely alter the outcome of the trial; (3) improper conduct by an attorney or the court unfairly influenced the verdict; or (4) the jury’s verdict was facially inconsistent. See Zarow-Smith v. N.J. Transit Rail Operations, 953 F.Supp. 581, 584-85 (D.N.J.1997) (citations omitted). The court must proceed cautiously, mindful that it should not simply substitute its own judgment of the facts and the credibility of the witnesses for those of the jury. Rather, the court should grant a new trial on the basis that the verdict was against the weight of the evidence only where a miscarriage of justice would result if the verdict were to stand. See Williamson, 926 F.2d at 1352; EEOC v. Del. Dep’t of Health & Soc. Servs., 865 F.2d 1408, 1413 (3d Cir.1989). IV. DISCUSSION A. Apple’s Renewed JMOL Motion Apple advances several arguments in support of its renewed motion for JMOL. Regarding invalidity, Apple asserts that it “presented clear and convincing evidence identifying every limitation of the asserted claims in the prior art and establishing why one of ordinary skill would have combined these invalidity references.” (D.I. 518 at 1) It asserts that MobileMedia presented no evidence of secondary indicia of nonobviousness and relied on conclusory expert testimony that conflicted with legal standards and the evidence. (Id.) Regarding non-infringement, Apple avers that MobileMedia presented no evidence that Apple directly infringes the ’075 or ’068 patent, and that MobileMedia’s only infringement theory for the ’078 patent was neither disclosed in discovery nor supported by the evidence. (Id.) 1. Standards a. Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). To prove direct infringement, the patentee must establish, by a preponderance of the evidence, that one or more claims of the patent read on the accused device literally or under the doctrine of equivalents. See Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 261 F.3d 1329, 1336 (Fed.Cir.2001). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. See Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform each and every step or element of a claimed method or product.” Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1320 (Fed.Cir.2009) (internal quotation marks omitted). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotation marks omitted). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). b. Invalidity (1) Anticipation Under 35 U.S.C. § 102(e), a person shall be entitled to a patent unless an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent ... or a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent. A claim is anticipated only if each and every limitation as set forth in the claim is found, either expressly or inherently described, in a single prior art reference. Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631 (Fed.Cir.1987). A single prior art reference may expressly anticipate a claim where the reference explicitly discloses each and every claim limitation. However, the prior art need not be ipsissimis verbis (i.e., use identical words as those recited in the claims) to be expressly anticipating. Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 716 (Fed.Cir.1984). A single prior art reference also may anticipate a claim where one of ordinary skill in the art would have understood each and every claim limitation to have been disclosed inherently in the reference. Cont’l Can Co. USA Inc. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed.Cir.1991). The Federal Circuit has explained that an inherent limitation is one that is necessarily present and not one that may be established by probabilities or possibilities. Id. That is, “the mere fact that a certain thing may result from a given set of circumstances is not sufficient.” Id. The Federal Circuit also has observed that “inherency operates to anticipate entire inventions as well as single limitations within an invention.” Schering Corp. v. Geneva Pharm. Inc., 339 F.3d 1373, 1380 (Fed.Cir.2003). Moreover, recognition of an inherent limitation by a person of ordinary skill in the art before the critical date is not required to establish inherent anticipation. Id. at 1377. Even if the prior art discloses each and every limitation set forth in a claim, such disclosure will not suffice under 25 U.S.C. § 102 if it is not enabling. In re Borst, 345 F.2d 851, 855 (C.C.P.A.1965). “Long ago our predecessor court recognized that a non-enabled disclosure cannot be anticipatory (because it is not truly prior art) if that disclosure fails to ‘enable one of skill in the art to reduce the disclosed invention to practice.’ ” Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1354 (Fed.Cir.2003) (citations omitted). The patentee bears the burden to show that the prior art reference is not enabled and, therefore, disqualified as relevant prior art for an anticipation inquiry. Id. at 1355. An anticipation inquiry involves two steps. First, the court must construe the claims of the patent in suit as a matter of law. Key Pharm. v. Hercon Lab. Corp., 161 F.3d 709, 714 (Fed.Cir.1998). Second, the finder of fact must compare the construed claims against the prior art to determine whether the prior art discloses the claimed invention. Id. The burden of proof rests on the party asserting invalidity and can be met only by clear and convincing evidence. Microsoft Corp. v. i4i Ltd. P’ship, — U.S. —, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011) (“We consider whether [35 U.S.C.] § 282 requires an invalidity defense to be proved by clear and convincing evidence. We hold that it does.”). (2) Obviousness “A patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a). Obviousness is a question of law, which depends on underlying factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007) (quoting Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966)). “[A] patent composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known in the prior art.” KSR, 550 U.S. at 418, 127 S.Ct. 1727. Likewise, a defendant asserting obviousness in view of a combination of references has the burden to show that a person of ordinary skill in the relevant field had a reason to combine the elements in the manner claimed. Id. at 418-19, 127 S.Ct. 1727. The Supreme Court has emphasized the need for courts to value “common sense” over “rigid preventative rules” in determining whether a motivation to combine existed. Id. at 419-20, 127 S.Ct. 1727. “[A]ny need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.” Id. at 420, 127 S.Ct. 1727. In addition to showing that a person of ordinary skill in the art would have had reason to attempt to make the composition or device, or carry out the claimed process, a defendant must also demonstrate that “such a person would have had a reasonable expectation of success in doing so.” PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1360 (Fed.Cir.2007). A combination of prior art elements may have been “obvious to try” where there existed “a design need or market pressure to solve a problem and there [were] a finite number of identified, predictable solutions” to it, and the pursuit of the “known options within [a person of ordinary skill in the art’s] technical grasp” leads to the anticipated success. KSR, 550 U.S. at 421, 127 S.Ct. 1727. In this circumstance, “the fact that a combination was obvious to try might show that it was obvious under § 103.” Id. A fact finder is required to consider evidence of secondary considerations, or objective indicia of nonobviousness, before reaching an obviousness determination, as a “check against hindsight bias.” See In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1079 (Fed.Cir.2012). “Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.” John Deere Co., 383 U.S. at 17-18, 86 S.Ct. 684. “Because patents are presumed to be valid, an alleged infringer seeking to invalidate a patent on obviousness grounds must establish its obviousness by facts supported by clear and convincing evidence.” Kao Corp. v. Unilever U.S., Inc., 441 F.3d 963, 968 (Fed.Cir.2006) (citation omitted). In conjunction with this burden, the Federal Circuit has explained that, [w]hen no prior art other than that which was considered by the PTO examiner is relied on by the attacker, he has the added burden of overcoming the deference that is due to a qualified government agency presumed to have properly done its job, which includes one or more examiners who are assumed to have some expertise in interpreting the references and to be familiar from their work with the level of skill in the art and whose duty it is to issue only valid patents. PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1304 (Fed.Cir.2008) (quoting Am. Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1359 (Fed.Cir.1984)). 2. The’075 Patent The ’075 patent, titled “Method and Apparatus for Incoming Call Rejection,” relates to call processing techniques for rejecting incoming calls in cellular telecommunications systems. (’075 patent, col. 1:15-16) Conventionally, “wireless telecommunications systems are made up of a series of base stations connected to landline telecommunications networks. ...” (Id., col. 1:31-33) These base stations communicate by base station controllers and can establish radio frequency (“RF”) communications channels with remote mobile phones (or “mobiles”). (Id., col. 1:34-37) When a person attempts to call a mobile phone user who is in the geographic coverage area of the wireless system, “the base station acts as an intermediary by [sending a call alert to] the mobile via at least one RF channel.” (Id., col. 2:1-3) Thereafter, the base station waits for a fixed time period, or a ringing cycle, to receive a response from the mobile phone. (Id., col. 2:3-6) If the mobile phone user answers the call, the mobile phone sends a response to the base station, which sets up a connection over an existing or new RF channel. (Id., col. 2:13-18) If the user does not answer the call, “the base station releases the call by terminating the call alert to the mobile and signaling to the caller that the mobile is unavailable.” (Id., col. 2:7-10) According to the ’075 patent, prior art wireless telecommunications systems did not provide users the option to reject calls immediately on demand, so a user had to either power off the mobile phone or allow it to ring through the entire ringing cycle. (Id., col. 2:36-53) To address this need, the ’075 patent teaches a method and apparatus that allow a user of a mobile communications device to automatically or manually reject calls. (Id., col. 3:32-47) The reexamined patent only relates to the rejection of incoming calls while the device is “in communication with a first calling station,” or already connected to a first call. (See id., claims 10, 15) Specifically, the claimed invention is directed to a mobile phone rejecting a second incoming call by sending a “rejection message” to the wireless system with “at least one information element indicating to the wireless system that the wireless system is to immediately release the incoming call.” (Id., col. 12:31-33) The ’075 patent was issued on June 26, 2001 and claims priority to a provisional application filed May 19, 1998. An ex parte reexamination certificate cancelling claim 1-4, amending claims 10, 13, and 14, and confirming claims 5-9, 11-12, and 14 was issued on March 20, 2012. Claims 5, 6, and 10 were asserted at trial. Claim 5 and reexamined claim 10 are reproduced below: 5. A method of rejecting an incoming call to a mobile phone, said mobile phone having a transceiver circuit for transmitting and receiving transmissions to and from a remote transceiver, said mobile phone in communication with a first calling station via the remote transceiver on a communication channel in a wireless system, said method comprising the steps of: receiving at the mobile phone, a transmission from the remote transceiver signifying that there is an incoming call; determining at the mobile phone if said incoming call is to be rejected; and transmitting from the mobile phone a rejection message to the remote transceiver in response to a determination being made, during said step of determining, that said incoming call is to be rejected, said rejection message comprising at least one information element indicating to the wireless system that the wireless system is to immediately release the incoming call on the communication channel between the mobile phone and remote transceiver. 10. In a mobile communications device, apparatus in communication with a first calling station for selectably rejecting an incoming call, said apparatus comprising: a transceiver operable to send and receive transmissions to and from a remote transceiver in a wireless system on a communication channel, said transceiver for receiving a transmission signifying that an incoming call is being attempted; and a control processor coupled to said transceiver, said control processor for determining if said incoming call is to be rejected and, in response to a positive determination, said control processor for outputting a rejection message to said transceiver for transmission to said remote transceiver, wherein said rejection message comprises at least one information element indicating to the wireless system that the wireless system is to immediately release the incoming call on the communication channel between the mobile communications device and remote transceiver. (Emphasis added) Dependent claim 6 teaches the method of claim 5, “wherein the mobile phone includes an actuator operable by a user for inputting a manual input to the mobile phone.” a. Invalidity of the ’075 patent (1) Apple’s evidence At trial, Apple asserted that the claims of the ’075 patent are obvious based on combinations of (1) Global System for Mobile Communications standard (“GSM”) 04.83 and GSM 04.08 (collectively, “GSM 04.83/04.08”), and (2) the ’068 patent with GSM 04.83/04.08. Apple presented evidence that these references are prior art and that, together, they disclose all limitations of the asserted claims of the ’075 patent. (See D.I. 534 at 1099:6-1100:8) Specifically, GSM 04.08 discloses the messages exchanged between a mobile phone and a base station to establish and release a single call. (DTX 40 § 5.2.2.1; D.I. 534 at 1102:14-16, 1108:3-5, 1108:18-20, 1152:8-20) GSM 04.83 discloses call handling for second incoming calls (or “call waiting” calls). (DTX 41 §§ 1.1, 1.3.1; D.I. 534 at 1102:13-14, 1104:15-19, 1108:1— 2) Apple’s expert, Dr. Robert Akl (“Dr. AM”), testified at trial that it would have been obvious for a person of ordinary sMll to combine GSM 04.83 and GSM 04.08 to reject a second incoming call for several reasons. (D.I. 534 at 1107:9-1109:6) GSM 04.83/04.08 are parts of Phase 2 of the GSM standard, published by one standards body, the European Telecommunications Standards Institute (“ETSI”) in 1995. (Id. at 1108:6-10; DTX 40; DTX 41) He also pointed to GSM 04.83’s express instruction to an engineer to use GSM 04.08 and averred that one of ordinary sMll could easily locate the relevant portions of GSM 04.08 by using, for instance, the table of contents and recognizing that the relevant sections of GSM 04.83 and GSM 04.08 share “very similar” titles — “[wjaiting call indication and confirmation” (GSM 04.83 § 1.1) vs. “[c]all indication” and “[c]all confirmation” (GSM 04.08 §§ 5.2.2.1, 5.2.2.3). (D.I. 534 at 1107:15-1109:6; see also id. at 1152:8-20) Another Apple witness, engineer Matthew Klahn (“Klahn”), also testified that it would be “trivial” for an engineer to find the relevant portions of GSM 04.08 by referring to the index, which lists sections by functionality. (D.I. 533 at 863:15-25) Apple further pointed out that the inventors explicitly recognized, in their provisional application for the ’075 patent, that “GSM has a feature like this.” (JTX 11 at 2; D.I. 534 at 1100:4-1102:3) In addition, Apple argues that the opinion of MobileMedia’s expert, Dr. Sigurd Meldal (“Dr. Meldal”), that a person of ordinary skill would not be motivated to combine GSM 04.83 and GSM 04.08 contradicts MobileMedia’s infringement theory, which depends on the combination of two later GSM documents: GSM 24.083 and GSM 24.008 (collectively, “GSM 24.083/24.008”). (D.I. 532 at 587:25-599:3; D.I. 535 at 1437:9-1438:18) Dr. Akl testified that GSM 24.083/24.008 are “very similar” to GSM 04.83/04.08 and that the relevant GSM functionality (regarding the “disconnect,” “release,” and “release request” messages) has not changed in the 20 years since the GSM 4.83 and GSM 4.08 standards were published. (D.I. 534 at 1097:23-1099:3) Furthermore, in response to MobileMedia’s suggestion that going from a first call rejection to a second call rejection required an inventive leap, Apple submitted the ’068 patent as another prior art reference to supply this inventive leap. The ’068 patent teaches a user interface that provides an option to reject a second incoming call and states that rejection of the second incoming call may be performed using standards in the GSM system. (’068 patent, Figs. 6A, 6B, 6D, 7, col. 1:8-13, 1:17-28; D.I. 534 at 1114:14-1123:18,1156:4-22) (2) MobileMedia’s evidence MobileMedia did not dispute that GSM 04.83 and GSM 04.08, together with or without the ’068 patent, disclose every limitation of the asserted claims. (See D.I. 534 at 1102:9-12; D.I. 535 at 1394:10-21, 1403:22-1404:10; see also D.I. 520 at 14-15) MobileMedia also did not offer any evidence of secondary considerations of nonobviousness, and the jury was not instructed on such considerations. (See D.I. 505) Instead, MobileMedia focused on showing that one of ordinary skill could not “put[ ] rejection from [GSM] 04.08 onto call waiting [from GSM 04.83].” (D.I. 536 at 1564:15-17) In post-trial briefing, it argues that the court’s denial of summary judgment of obviousness based on this combination supports the verdict of validity because whether GSM 04.08 teaches away from combinations with references that teach call handling of second incoming calls, such as GSM 4.83 or the ’068 patent, was an issue of material fact for the jury. (D.I. 520 at 14) MobileMedia’s expert, Dr. Meldal, opined at trial that his engineering students would have been “discouraged” from using GSM 04.08 to handle a second call because it only related to handling a single call. (D.I. 535 at 1395:15-1396:16) Dr. Meldal also testified that GSM 04.08 disclosed sending Cause No. 21, or a “busy” signal, in response to a second incoming call and, thus, taught away from the invention claimed in the ’075 patent. (Id. at 1397:19-1398:23) With respect to combining GSM 04.08 with GSM 04.83, he opined: I had given my opinion about why a person of ordinary skill in the art would actually be looking away from [GSM 04.08] because it was about busy calls whereas [GSM 04.83] is about call waiting and call hold. [S]o we have on the one hand one document talking about call waiting. We have another document talking about handling the first call. One of them is small, one of them is big. And even having them side by side, it doesn’t tell you anything about call waiting while on the second call. (D.I. 535 at 1403:22-1404:16) In addition, MobileMedia avers that, “the jury was presented with substantial evidence of no invalidity through the reexamination of the ’075 patent” at the U.S. Patent and Trademark Office (“PTO”). (D.I. 520 at 14-15) Although GSM 04.83 was not before the PTO during reexamination, it is undisputed that the examiner knew about call waiting. (See D.I. 534 at 1143:1-14) MobileMedia argues that, in view of GSM 04.08 and the examiner’s knowledge of call waiting, the jury was free to reject Apple’s argument that the claimed invention was obvious. (D.I. 520 at 15) (3) Analysis Although it is a question of fact, “the question of motivation to combine may nonetheless be addressed on ... JMOL in appropriate circumstances.” Wyers v. Master Lock Co., 616 F.3d 1231, 1239 (Fed.Cir.2010) (citations omitted). Here, there is no dispute that the combination of GSM 04.08 and GSM 04.83, with or without the ’068 patent, discloses all limitations of the asserted claims. The dispute is limited to whether there was sufficient motivation to combine. At trial, Dr. Meldal focused primarily on the disclosure of GSM 04.08 alone, opining that it would have led to a dead end because GSM 04.08 discouraged or taught away from rejecting a second incoming call while the phone was already connected to a first call; it only related to rejection of a single call. Apple disputes whether GSM 04.08 teaches away from rejecting second incoming calls because it asserts that GSM 04.08’s definition of Cause No. 21 does not teach that a second caller would receive a busy signal. (D.I. 523 at 1) This dispute raised a question of fact regarding the disclosure of GSM 04.08 to a person of ordinary skill. The jury was free to find that GSM 04.08 teaches away from handling second incoming calls while connected to a first call. With respect to the combination GSM 04.08 with GSM 04.83, however, Dr. Meldal only offered conclusory testimony that “[GSM 04.83] is small, [GSM 04.08] is big. And even having them side by side, it doesn’t tell you anything about call waiting while on the second call.” (D.I. 535 at 1404:14-16) He did not offer any further reasoning to rebut Apple’s evidence that a person of ordinary skill would have found it obvious when starting with GSM 04.83 (rather than GSM 04.08) to combine GSM 04.83 and GSM 04.08. As the jury was instructed, “[a] person of ordinary skill in the art is presumed to have knowledge of the relevant prior art at the time of the claimed invention.” (D.I. 536 at 1698:22-24) See In re GPAC Inc., 57 F.3d 1573, 1579 (Fed.Cir.1995); Union Carbide Corp. v. Am. Can Co., 724 F.2d 1567, 1576 (Fed.Cir.1984) (finding that a person of ordinary skill is an “inventor working in his shop with the prior art references — which he is presumed to know — hanging on the walls around him”). Conclusory expert testimony on lack of motivation to combine “provides no support for the jury’s verdict.” Belden Techs., Inc. v. Superior Essex Commc’ns LP, 802 F.Supp.2d 555, 573 (D.Del.2011). Dr. Meldal did not provide any testimony to dispute Apple’s evidence that a person of ordinary skill in the art looking at both GSM 04.83 and GSM 04.08 would find it obvious to combine them. Nor did Dr. Meldal rebut Apple’s argument that the ’068 patent supplies any additional inventive leap necessary to combine GSM 04.83 and GSM 04.08. Indeed, on cross-examination, Dr. Meldal agreed that GSM 04.83 references GSM 04.08 approximately sixteen times in twenty pages. (D.I. 535 at 1442:6-23, 1444:10-1445:17, 1454:1-12) GSM 04.83 expressly requires the use of GSM 04.08: “For the release of the waiting call the mobile station and the network shall act in accordance with ... GSM 04.08.” (DTX 41 § 1.3.1; see also id. §§ 0.1, 0.2, 1.1, 1.2.1, 1.2.2, 1.2.3, 1.3.2, 1.3.3, 2.1.2, 2.1.5) Although GSM 04.08 is a voluminous document, Apple submitted evidence that a person of ordinary skill would know which sections to examine. MobileMedia’s validity theories did not address the fact that one of ordinary skill also knew the contents of GSM 04.83 and could start there. Besides the conclusory testimony of Dr. Meldal, MobileMedia’s evidence only related to starting with GSM 04.08. In addition, MobileMedia’s infringement theory conflicts with Dr. Meldal’s invalidity opinion that a person of ordinary skill in the art would not have been able to combine GSM 04.83 and GSM 04.08. When discussing infringement, Dr. Meldal testified that a person of ordinary skill viewing GSM 24.083 § 1.3.1 regarding call rejection would refer to GSM 24.008, which describes the details of “how [one is] actually going to ... indicate that [the user is] busy,” i.e., already on a first call. (D.I. 532 at 591:12-592:10) Specifically, Dr. Meldal asserted that the instructions in GSM 24.083 § 1.3.1 would lead a person of ordinary skill to various sections under GSM 24.008 §§ 5.2.2, 5.4.2, and 5.4.3 and, eventually, to § 5.4.3.5, which describes the “abnormal case.” {Id. at 591:1-596:15) When questioned about the similarity between GSM 04.83/04.08 and GSM 24.083/24.008 on cross-examination, Dr. Meldal observed that GSM 24.083/24.008 made some “substantive changes” but recognized that the “documents dealt ] with the same matter,” “are part of the sequence of documents [that] dealt ] with the same matter,” and are “the updated version[s]” of GSM 04.83/04.08. (D.I. 535 at 1438:25-1439:6) Although there are differences, the relevant sections of GSM 24.083/24.008 and GSM 04.83/04.08 are identical, on their face, for all material purposes. {Compare PTX 56 § 1.3.1 and PTX 60 §§ 5.2.2.3.4, 5.4.2, 5.4.3, 5.4.3.2, 5.4.3.3, 5.4.3.5 with DTX 41 § 1.3.1 and DTX 40 §§ 5.2.2.3.4, 5.4.2, 5.4.3, 5.4.3.2, 5.4.3.3, 5.4.3.5; see also D.I. 524, ex. A (providing a redline comparison)) Contrary to MobileMedia’s post-trial assertion {see D.I. 520 at 16), Dr. Meldal did not offer any testimony that conflicted with Dr. Akl’s testimony that, for all relevant purposes, the GSM 24.083/24.008 and GSM 04.83/04.08 standards were substantively the same. Although the question before the jury was whether a person of ordinary skill would have combined GSM 04.83 and GSM 04.08 in 1998, MobileMedia’s reliance on the GSM 24.083/GSM 24.008 combination was based on a person of ordinary skill following the instructions found in certain sections of GSM 24.083 and GSM 24.008 that had not materially changed since 1998. Therefore, MobileMedia’s justification for relying on the GSM 24.083/GSM 24.008 combination was inconsistent with its assertion that GSM 04.83 and 04.08 could not have been combined. Finally, MobileMedia’s argument that the examiner knew about call waiting, generally, during reexamination is not relevant to the question of whether a person of ordinary skill who considered GSM 04.83, specifically, would have been motivated to also use GSM 04.08 to reject a second incoming call. (D.I. 535 at 1445:18-1446:7) Apple offered evidence that GSM 04.83, which was not considered by the PTO, not only disclosed call waiting but also provided motivation to combine through its express instructions to follow GSM 04.08. The court finds that, even if the jury had resolved all disputed facts in MobileMedia’s favor, the evidence could not support a finding that the asserted claims of the ’075 patent are valid over the asserted combinations. MobileMedia’s evidence did not consider that a person of ordinary skill in the art is presumed to have knowledge of all prior art references and could thus start with GSM 04.83 and follow its instructions to use GSM 04.08, rather than considering GSM 04.08 first and hitting a dead end. Therefore, the court grants Apple’s renewed motion for JMOL with respect to invalidity of asserted claims 5, 6, and 10 of the ’075 patent, as the evidence cannot support a verdict that the ’075 is valid over GSM 04.83 and GSM 04.08, with or without the additional ’068 patent reference. b. Infringement of the ’075 patent (1) Apple’s evidence MobileMedia’s infringement theory at trial for the ’075 patent was based on an “abnormal case,” as defined in GSM 24.008 § 5.4.S.5. (PTX 60 § 5.4.3.5) Essentially, the abnormal case describes a scenario in which a base station may release a second call following the expiration of two timers and the failure of a mobile phone to respond as required under the GSM standard. (Id.; D.I. 532 at 583:22-585:13) Apple submits that the jury’s finding of direct infringement is not supported by the evidence for two independent reasons. First, Apple argues that MobileMedia did not present any evidence that the accused method of releasing a second call has ever actually occurred on any iPhone. Two Apple witnesses, Klahn and Dr. Akl, both testified that there is no evidence that a second incoming call has ever been released from an iPhone as a result of the abnormal case. (D.I. 533 at 867:13; D.I. 534 at 1084:15-21) Apple’s second argument is that, even if an iPhone has released a second incoming call using the accused method, MobileMedia failed to provide sufficient evidence that the accused DISCONNECT message is a “rejection message” that comprises “at least one information element indicating to the wireless system that the wireless system is to immediately release the incoming call,” as required by each asserted claim of the ’075 patent. (D.I. 518 at 9-10) To meet these limitations under the court’s construction, the DISCONNECT message must be “sufficient to cause the base station to ‘immediately release the call’ ” and include an information element “indicating to the wireless system” that “the wireless system must, without requiring any additional action by or communication from the mobile phone,” release the incoming call. (See D.I. 461 at 29) (emphasis added) Apple’s expert, Dr. Akl, opined that the DISCONNECT message does not indicate to the base station that it must “immediately release” the call; instead, it “indicates to the base station to send the release message and enter the release request, which means it’s telling it to wait for a response.” (D.I. 534 at 1091:21-1092:2; see also id. at 1081:3-6, 1082:5-8, 1082:20-1083:2, 1084:22-1086:1, 1133:9-1134:11) Apple asserts that MobileMedia’s evidence shows the DISCONNECT message indicates to the wireless system to start the release process and wait for a response from the mobile phone — not to “immediately release the call.” (D.I. 518 at 9) (2) MobileMedia’s evidence MobileMedia’s expert, Dr. Meldal, conceded that he had no evidence that a single iPhone call has ever been disconnected under the abnormal case; he insisted that the absence of evidence was not relevant and “assume[d] iPhones disconnect ] a second call....” (D.I. 533 at 744:10-25) MobileMedia contends that there is no requirement that the wireless system uses the information element to actually release the call. Rather, the “information element” need only have sufficient information to release the call. (D.I. 520 at 12-13) Moreover, MobileMedia avers that Apple’s expert conceded that a call will be released by the wireless system in the abnormal case: Q. And, in fact, is it reasonable to assume as an expert in the field that the carriers are using the timer that the standard tells them they should be using? A. Sure. Q. And if the carriers are using the timer as the standard requires, and that iPhone gets disconnected, the call will still drop after the timer expires twice; right? A. Sure. (D.I. 535 at 1128:23-1129:5) With respect to the “information element” limitation, Dr. Meldal testified that the DISCONNECT message sent by the iPhone is a “rejection message” which includes “cause information element # 17 (User Busy)” (hereinafter, “cause 17”). (D.I. 532 at 581:7-22, 591:23-592:2; PTX 56 § 1.3.1) Cause 17 indicates to the wireless system that the mobile user is “busy” and instructs the wireless system on how to “handle” the second incoming call. (D.I. 532 at 591:23-592:5; PTX 56 § 1.3.1) According to Dr. Meldal, one of two scenarios may then occur: (1) the “polite handshake” scenario, in which the mobile phone receives a release request from the base station and sends back a “release complete” that instructs the base station to release the call; or (2) the “abnormal case,” in which the call is released if a timer expires twice before the base station receives a “release complete” from the mobile phone. (D.I. 532 at 584:17-585:11, 593:11-596:15) It is Apple’s alleged use of the latter scenario that was accused of infringing the ’075 patent at trial. (3) Analysis The court does not reach the issue of whether MobileMedia needed to show that the abnormal case has actually occurred in the iPhone and, if so, whether it offered sufficient evidence in that regard. Because MobileMedia did not present sufficient evidence to support a finding that cause 17 indicates to the wireless system that it must “immediately” release the second incoming call, the court will grant Apple’s renewed JMOL motion for non-infringement of the ’075 patent. For purposes of the “rejection message” and “information element” limitations, the parties emphasize different portions of the claim language and the court’s construction. Apple emphasizes that the “information element” of the rejection message needs to indicate to the wireless system that it “must” immediately release a call, while MobileMedia avers that the “rejection message” need only be “sufficient” to release a call. To be clear, the court’s construction requires that a “rejection message” be “sufficient to release a call.” The asserted claims then further require the rejection message to include an “information element.” That information element needs to “indicate] to the wireless system that the wireless system is to immediately release the call.” Under the court’s construction of “the wireless system is to immediately release the call,” the information element has to indicate to the wireless system that it “must, without requiring additional action by or communication from the mobile phone,” release the call. Therefore, to the extent MobileMedia argues that cause 17 is sufficient to release a call, it improperly imports the sufficiency requirement of the “rejection message” limitation to the “information element” limitation. It ignores the court’s construction that the information element needs to indicate to the wireless system that it must immediately release the call. There is no dispute that cause 17 is sent with the accused DISCONNECT message. MobileMedia did not offer any evidence, save Dr. Meldal’s conclusory testimony, that cause 17 indicates to the wireless system that it must immediately release the second incoming call. Indeed, the evidence shows that cause 17 does not indicate to the wireless system that it must immediately release a call. Dr. Meldal conceded that cause 17 is sent with the DISCONNECT message in the normal “polite handshake” scenario in which the base station releases the call only after receiving more messages from the mobile phone. (D.I. 532 at 596:10-15) The normal case does not constitute an “immediate” release under the court’s construction because the incoming call is released after the mobile unit performs the intermediate step of sending a “release complete” before the timer expires. Although MobileMedia offered evidence that cause 17, the alleged “information element,” is “sufficient” to cause the base station to immediately release a call in the abnormal case, it did not offer any evidence that cause 17 indicates that the wireless system “must” release a call without requiring additional action by or communication from the mobile phone. The only actions that cause 17 indicates a wireless system “must” do are to send a release request and wait for a response. As there was no evidence that cause 17 meets the asserted claims’ limitations for an “information element,” the court grants Apple’s renewed JMOL motion with respect to non-infringement of the ’075 patent. 3. The ’068 patent The ’068 patent, titled “Communication Terminal Device and Method for Controlling a Connecting State of a Call into a Desired Connection State upon a Predetermined Operation by a User,” was issued on May 30, 2000. It claims a foreign application priority date of March 19, 1996. A reexamination certificate was issued March 6, 2012, cancelling claims 17-22 and 27-32, amending several claims, and adding claims 33-57. The patent teaches a communication terminal device in which “the connecting state of a call can certainly and easily be controlled without learning troublesome operating methods.... ” (’068 patent, abstract) Conventionally, a variety of functions are available to a telephone user if, during a call in progress, the user receives an incoming call from a third party. “For instance, [the user may suspend] the call in progress ... and [connect with] a newly received call ..., or disconnect ] the call presently talking and connect with the newly received call, or includ[e] the call received among the present call and talk with two parties at the same time, ... or disconnect ] the call received and ... continue talking with the present call.” (Id., col. 1:22-28) The user executes one of these call controls by performing a predetermined operation. (Id,, col. 1:29-30) For example, under the GSM standard, pressing the “2” key then the “send” key suspends the call in progress and connects with the call received; pressing the “1” key then the “send” key disconnects the call in progress and connects with the call received; pressing the “3” key then the “send” key switches the call into a three-way call; and pressing the “0” key then the “send” key disconnects the call received and continues the call in progress. (Id., col. 1:31-38) According to the ’068 patent, “these operating methods of call controls are very difficult to learn for the user, and often cause erroneous operations.” (Id.', col. 1:49-51) The invention of the ’068 patent provides a “control means” for displaying the “processing items” available and controlling the call into the connecting state that the user selects. (Id., col. 2:3-7) Reexamined claims 23 and 24 were asserted at trial. Claim 23 recites: 23. A communication method for controlling a connecting state of a call into a desired connecting state upon a predetermined operation by a user, comprising the steps of: displaying processing items available to the user relative to the call on a' display; selecting and determining a desired processing item out of said processing items displayed on said display by the user operating an input unit; and controlling the processing items being ‘ displayed on said display and controlling the call into a connecting state corresponding to the processing item selected and determined by the operation of said input unit by the user, wherein said step of controlling the processing items includes displaying said processing items on said display when only a single predetermined selection operation is made by the user, wherein said step of controlling the processing items includes listing said processing items available to the call on. said display for each. call. (Emphasis added) Claim 24 recites the same limitations as claim 23 except that it (1) recites “a predetermined selection operation” rather than “only a single predetermined selection operation,” and (2) adds the limitation “wherein when a processing for one call is determined by said step of selecting and a processing for another call is naturally determined, said step of controlling said processing items includes listing only processing items available to said one call on said display”: 24. A communicating method for controlling a connecting state of a call into a desired connecting state upon a predetermined operation by a user, comprising the steps of: displaying processing items available to the user relative to the call on a display; selecting and determining a desired processing item out of said processing items displayed on said display by the user operating an input unit; and controlling the processing items being displayed on said display and controlling the call into a connecting state corresponding to the processing item selected and determined by the operation of said input unit by the user, wherein said step of controlling the processing items includes displaying said processing items on said display when a predetermined selection operation is made by the user, wherein said step of controlling the processing items includes listing said processing items available to the call on said display for each call, wherein when a processing for one call is determined by said step of selecting and a processing for another call is naturally determined, said step of controlling said processing items includes listing only processing items available to said one call on said display. (Emphasis added) a. Validity of the ’068 patent (1) Apple’s evidence Apple asserts that there was no legally sufficient basis for the jury to have found that asserted prior art U.S. Patent No. 5,754,636 (“Bayless”) does not anticipate or render obvious the asserted claims of the ’068 patent. Apple’s expert, Dr. Ravin Balakrishnan (“Dr. Balakrishnan”), testified that Bayless discloses every limitation of claims 23 and 24 because it teaches a “Make & Answers Calls” window that offers control options that are displayed when a “Hotkey is pressed.” (DTX 26, Figs. 41, 42; D.I. 533 at 941:23-948:8; D.I. 534 at 958:3-967:10, 1048:6-18) The only limitation of claim 23 that MobileMedia disputed at trial was whether Bayless discloses “only a single predetermined selection operation.” (D.I. 535 at 1417:18-1418:1, 1433:16-19, 1435:2-14) The “Hot-key” taught by Bayless entails hitting multiple “keys,” such as control + O. (DTX 26, Figs. 41, 42; D.I. 533 at 945:16-18, 948:5-6, 960:7-11) Dr. Balakrishnan opined that the result of pressing multiple keys still constitutes a single “predetermined selection operation.” (D.I. 533 at 943:18-19, 945:5-22, 948:1-11; D.I. 534 at 960:2-25, 965:14-967:10,1048:15-18) Apple asserts that the ’068 patent “makes clear that a single operation includes a user pressing more than a single key.” (D.I. 518 at 13) It argues that the ’068 patent distinguished between a “key” and an “operation” because some non-asserted claims recite a “key” as opposed to an “operation.” (Id. at 12-13) It also points to a portion of the specification that states: “The above call controls are executed by performing a predetermined operation determined by a standard in the GSM system. For instance, in case of suspending the call in progress and talk with the call received, ‘send’ key should be pushed after pushing ‘2’ key .... ” (’068 patent, col. 1:29-33) Apple avers that this disclosure supports its position that the ordinary meaning of “operation” includes pressing multiple keys. (D.I. 518 at 12-13) Dr. Balakrishnan testified that, even if a “predetermined selection operation” requires pressing a single key, Bayless makes the use of a single key, such as FI or F2, for the Hotkey obvious because a person of ordinary skill would know that using a single key is “something that ordinarily would be done.” (D.I. 534 at 967:1-10) With respect to claim 24, Apple argues that claim 24 does not contain the words “only a single” before “predetermined selection operation,” so the claim allows multiple operations; because there was no dispute that Bayless at least discloses multiple predetermined selection operations, Bayless allegedly discloses claim 24. (D.I. 518 at 14) Dr. Balakrishnan testified in this regard at trial. (D.I. 534 at 961:11-25, 962:9-24, 963:14-16) (2) MobileMedia’s evidence MobileMedia argues that Bayless’s Hot-key does not meet claim 23’s requirement for “only a single” predetermined selection operation. (D.I. 535 at 1410:10-15) Dr. Meldal testified that Bayless discloses using multiple keys — a “function” key (such as the control key) and a “regular” key (such as the zero key) — and that each key is a separate predetermined selection operation; even pressing two keys “simultaneously with one hand” does not constitute a “single” predetermined selection operation. (Id. at 1408:22-1409:4, 1409:24-1410:15, 1432:20-25) Essentially, Dr. Meldal opined that each “key” corresponds to a “predetermined selection operation.” MobileMedia points out Dr. Balakrishnan’s acknowledgment that the PTO allowed the ’068 patent over Bayless because Bay-less requires “a two-step procedure.” (D.I. 534 at 1008:16-24, 1014:3-6, 1015:24-1017:1) By claiming a “one-step, one-key” operation for displaying processing items, the ’068 patent allegedly “relieved the user of remembering” the complex combinations previously needed to execute various functions. (D.I. 535 at 1410:16-1411:15) To rebut Dr. Balakrishnan’s testimony that use of a single key from the disclosure in Bayless was obvious, Dr. Meldal opined that Bayless and the ’068 patent addressed different problems in different fields, such that a person of ordinary skill would not have found it obvious to substitute a single key for the two-key Hotkey in Bayless. (Id. at 1412:25-1414:5,1480:12-1481:13) In response to Apple’s evidence that Bayless also discloses the “predetermined selection operation” of claim 24, Dr. Meldal opined that the “predetermined selection operation” of claim 24 is implicitly “still a single one.” (Id. at 1412:15-16) He submitted that the reason claim 24 does not include the language “only a single” before “predetermined selection operation” is because, unlike claim 23, the PTO did not engage in a discussion of claim 24’s validity during prosecution; claim 24 was allowed without amendment due to additional narrowing limitations not found in claim 23. (Id. at 1411:22-1412:24) Dr. Meldal further testified that the claimed invention of the ’068 patent would not have been obvious in view of Bayless and the knowledge in the industry because Bayless pointed away from using a single predetei’mined selection operation, and the benefit of using a single predetermined selection operation was supposedly less important for computers than for mobile phones. (Id. at 1413:1-1414:5) (3) Analysis The court first addresses claim 23. The parties focused on whether the disclosure in Bayless of hitting more than one key meets claim 23’s “only a single predetermined selection operation” limitation. To support its argument for the distinction between “keys” and “operations,” Apple only cites Dr. Meldal’s observation that some claims of the ’068 patent recite a “key” rather than an “operation” and the background section of the ’068 patent describing the prior art as disclosing the use of two “keys” for one “operation.” (See D.I. 518 at 12-13; ’068 patent, col. 1:29-33) Apple’s argument that the ’068 patent accords different meanings to “keys” and “operations” is a new claim construction argument, brought to the court’s attention for the first time after the jury verdict. Neither party objected to the court’s instruction to the jury to use the plain and ordinary meaning of “predetermined selection operation.” Before its renewed motion for JMOL, Apple never sought a construction to draw a distinction between a “key” and an “operation.” In fact, Apple sought the same construction for “predetermined operation key” and “predetermined selection operation” in the parties’ joint claim construction statement. (D.I. 239-1 at 11) (emphasis added) Apple argues in its post-trial briefing that “[t]o the extent any dispute regarding the proper interpretation of [‘predetermined selection operation’] remains, that dispute must be resolved.” (D.I. 518 at 17 n.5) (citing O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed.Cir.2008)) Contrary to Apple’s assertion, a litigant “cannot be allowed to create a new claim construction dispute following the close of [a] jury trial.” Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 694 (Fed.Cir.2008). In Broadcom Corp., the defendant argued that, by failing to construe the claim term “networks,” the district court erroneously left an issue of claim construction to the jury. The Federal Circuit disagreed, holding that, because the defendant never requested a construction until after the presentation of all of the evidence to the jury, the defendant “had waived its right to request a construction of ‘networks’ ” and “ha[d] thereby implicitly conceded that the meaning[ ] of ‘networks’ is clear and not in need of construction.” Id. (citing Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1360 (Fed.Cir.2004)). Importantly, the Court distinguished the scenario from 02 Micro: “Unlike in 02 Micro, where the parties disputed the proper construction of a term at a pre-trial Markman hearing, [the defendant] ... failed to offer its proposed construction ... at or prior to trial, and we reject such arguments raised for the first time after the jury verdict.” Id. (emphasis added). Because Apple never requested a construction or offered a construction to distinguish an “operation” from a “key,” its argument in that regard is an untimely claim construction argument. Id.; see also ArcelorMittal France v. AK Steel Corp., 811 F.Supp.2d 960, 972 (D.Del.2011) (denying a new trial because, although conflicting evidence had been presented to the jury regarding the meaning of a term, the party moving for a new trial did not identify the term as being in dispute until after trial), aff'd in part, rev’d in part, 700 F.3d 1314 (Fed.Cir.2012); Edwards Lifesciences AG v. CoreValve, Inc., Civ. No. 08-91, 2011 WL 446203, at *4 (D.Del. Feb. 7, 2011) (rejecting a renewed JMOL motion on the basis that the movants offered untimely claim construction arguments). Dr. Meldal’s testimony provided sufficient support for the jury’s implied conclusion that, under the ordinary meaning of a “predetermined selection operation,” Bay-less’s Hotkey disclosure constitutes multiple “predetermined selection operations” (rather than one “predetermined selection operation”) and, therefore, does not anticipate claim 23. In addition, Dr. Meldal offered testimony to rebut Dr. Balakrishnan’s testimony that claim 23 would have been obvious in light of Bayless and the knowledge of one of ordinary skill in the art. While Dr. Balakrishnan testified that it would have been obvious to one of ordinary skill to substitute a single key, such as FI or F2, for Bayless’s Hotkey, Dr. Meldal opined that Bayless and the ’068 patent addressed different problems in different fields, such that a person of ordinary skill would not have found such substitution to be obvious. The jury was free to believe Dr. Meldal’s opinion on obviousness. Accordingly, the court will not disturb the jury’s finding that claim 23 of the ’068 patent is valid. With respect to the validity of claim 24, MobileMedia’s only argument that Bayless does not anticipate claim 24 was the same argument it made for claim 23 — that while Bayless discloses multi