Huawei Techs., Co. v. Samsung Elecs. Co. (340 F. Supp. 3d 934, 2018)

United States District Court for the Northern District of California 2018-09-25

Commerce and Trade Patents

Citations

Full opinion text

William H. Orrick, United States District Judge

INTRODUCTION

Plaintiffs Huawei Technologies Co., Ltd., Huawei Device USA, Inc. and Huawei Technologies USA, Inc. (collectively, "Huawei") and defendants Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Research America, Inc. (collectively, "Samsung") are major players in the world of wireless telecommunications-a world governed by cellular technology standards, such as the 3G UMTS and 4G LTE standards developed by the Third Generation Partnership Project ("3GPP") and promulgated by standard setting organizations like the European Telecommunications Standards Institute ("ETSI"). Both Huawei and Samsung have agreed to license their declared standard essential patents ("SEPs") on fair, reasonable, and non-discriminatory ("FRAND") terms and conditions under ETSI's Intellectual Property Rights ("IPR") Policy. Compl. ¶ 63 (Dkt. No. 1[redacted], Dkt. No. 3-4[under seal] ); see also Samsung's Answer and Am. Counterclaims ¶¶ 29, 54 (Dkt. No. 91[redacted]; Dkt. No. 90-2[under seal] ). But they have been unable to agree on the terms of a cross-license to their patent portfolios or on a process that would result in a global resolution of these issues. Instead, they have chosen combat in piecemeal litigation around the globe.

This case is one of the pieces. My order here addresses each party's motion for summary judgment concerning the patents at issue, Huawei's Daubert motion and motion to preclude Samsung's FRAND experts, and Samsung's two motions to strike or exclude Huawei's expert reports. Because the parties are intimately familiar with the background in this case, I will only repeat what is necessary to resolve the issues presented by these motions.

PROCEDURAL HISTORY

On May 24, 2016, Huawei filed this action asserting claims for breach of contract, declaratory judgment of FRAND terms and conditions for a cross-license, and patent infringement of U.S. Patent No. 8,369,278, U.S. Patent No. 8,416,892, U.S. Patent No. 8,483,166, U.S. Patent No. 8,812,848, U.S. Patent No. 8,644,239, U.S. Patent No. 8,885,587, U.S. Patent No. 8,885,583, U.S. Patent No. 8,639,246, U.S. Patent No. 8,412,197, U.S. Patent No. 8,996,003, U.S. Patent No. 8,724,613. Compl. (Dkt. No. 1[redacted], Dkt. No. 59[unredacted] ).

Samsung answered on August 22, 2016, and amended on October 16, 2016, asserting counterclaims for breach of contract, antitrust monopolization in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, patent infringement of United States Patent Nos. 8,228,827 ("the '827 patent"), 8,315,195 ("the '195 patent"), RE44,105 ("the RE'105 patent"), 8,457,588 ("the '588 patent"), 8,509,350 ("the '350 patent"), 9,113,419 ("the '419 patent"), 8,619,726 ("the '726 patent"), 8,761,130 ("the '130 patent"), 9,288,825 ("the '825 patent"), 7,706,348 ("the '348 patent"), and 8,995,924 ("the '924 patent"), and declaratory judgment of noninfringement and invalidity of Huawei's patents-in-suit. Answer and Am. Counterclaims (Dkt. No. 91[redacted], Dkt. No. 90-2[sealed] ).

At the initial case management conference, the parties disputed whether bifurcating the case would be the most efficient way to manage it. 9/13/16 Minute Entry (Dkt. No. 75); see Joint Case Management St. (Dkt. No. 67). Huawei expressed its view that this case should be bifurcated to address the FRAND-related issues prior to the patent infringement issues, but Samsung insisted that Huawei was "asking the court to put the remedy before liability, put the cart before the horse, and that [would] not streamline things." 9/13/16 Hr'g Tr. at 20:9-12 (Dkt. No. 82). Given that the parties could not agree, I denied the request.

On November 21, 2016, I denied Samsung's motion to dismiss two of Huawei's patents (the '892 patent and the '239 patent ) on grounds that they fail to claim patent eligible subject matter under 35 U.S.C. § 101. Order Denying Samsung's MTD (Dkt. No. 103).

On April 27, 2017, I granted Samsung leave to amend its infringement contentions to include additional infringing instrumentalities and change the conception dates for its '827 patent and '105 patent. Order Granting Samsung Leave to Am. Inf. Contentions (Dkt. No. 130). I also directed the parties to submit joint or competing case proposals to assist in managing the scope of this case.

On June 2, 2017, I issued a case management order adopting the case narrowing procedures implemented by the Hon. Lucy Koh in Apple Inc. v. Samsung Electronics Co., Ltd. et al. , 5:12-cv-630-LHK (Dkt. Nos. 394, 471). The order directed the parties to limit their infringement contentions to 5 patents, 10 asserted claims, and 15 accused products per side.

On August 31, 2017, I issued the claim construction order for the five most significant terms selected by each side. Claim Construction Order (Dkt. No. 168).

On March 26, 2018, I granted Huawei's request to stay infringement claims for Samsung's '588 patent pending inter partes review before the Patent Trial and Appeal Board (PTAB). Order Granting Stay of Infringement Claim for '588 Patent Pending Inter Partes Review (Dkt. No. 267). Under different circumstances, I granted a similar request from Samsung to stay certain infringement claims for Huawei's '197 patent and '166 patent pending inter partes review. Order Granting Stay of Infringement Claim for '197 and '166 Patents (Dkt. No. 307).

On April 13, 2018, I granted Samsung's motion for an antisuit injunction enjoining Huawei from enforcing the injunction orders issued by the Intermediate People's Court of Shenzhen, which had found that Samsung is infringing two of Huawei's Chinese SEPs, Order Granting Samsung's Mot. for Antisuit Injunction (Dkt. No. 280[redacted] ). I denied Huawei's motion to alter, amend, or reconsider that order on June 19, 2018. (Dkt. No. 310).

On July 17, 2018, the parties stipulated to dismissal, without prejudice, of Huawei's cause of action for declaratory judgment of FRAND terms and conditions for a cross-license (count II). Stipulation (Dkt. No. 354); Order (Dkt. No. 361).

On July 3, 2018, Huawei filed its motion for summary judgment ("Huawei's MSJ") (Dkt. No. 328[redacted], Dkt. No. 327-8[under seal] ), motion to preclude Samsung's FRAND experts from offering improper legal opinions ("Huawei's FRAND-related Mot. to Strike") (Dkt. No. 329[redacted], Dkt. No. 327-6[under seal] ), and Daubert motion on technical issues ("Huawei's Daubert Mot.") (Dkt. No. 330[redacted], Dkt. No. 327-4[redacted] ).

The next day, Samsung filed its motion for summary judgment ("Samsung's MSJ") (Dkt. No. 336[redacted], Dkt. No. 333-2[under seal] ), motion to strike report and testimony of Huawei's experts Padilla, Lasinski, Jackson, deLisle, and Ding ("Samsung's Daubert Mot.") (Dkt. No. 335[redacted], Dkt. No. 334-2[under seal] ), and motion to strike portions of expert reports, largely based on inadequate disclosures ("Samsung's Mot. to Strike") (Dkt. No. 337[redacted], Dkt. No. 334-2[under seal] ).

On August 15, 2018, I heard argument from the parties. This order addresses those motions. The numerous administrative motions filed in conjunction with these substantive motions will be addressed separately.

LEGAL STANDARD

I. SUMMARY JUDGMENT

A party is entitled to summary judgment where it "shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine if it could reasonably be resolved in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material where it could affect the outcome of the case. Id.

The moving party has the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has made this showing, the burden shifts to the nonmoving party to identify specific evidence showing that a material factual issue remains for trial. Id. The nonmoving party may not rest on mere allegations or denials from its pleadings, but must "cit[e] to particular parts of materials in the record" demonstrating the presence of a material factual dispute. Fed. R. Civ. P. 56(c)(1)(A) ; see also Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505. The nonmoving party need not show that the issue will be conclusively resolved in its favor. Id. at 248-49, 106 S.Ct. 2505. All that is required is the identification of sufficient evidence to create a genuine dispute of material fact, thereby "requir[ing] a jury or judge to resolve the parties' differing versions of the truth at trial." Id. (internal quotation marks omitted). If the nonmoving party cannot produce such evidence, the movant "is entitled to ... judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case." Celotex , 477 U.S. at 323, 106 S.Ct. 2548.

On summary judgment, the court draws all reasonable factual inferences in favor of the nonmoving party. Liberty Lobby , 477 U.S. at 255, 106 S.Ct. 2505. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. However, conclusory and speculative testimony does not raise a genuine factual dispute and is insufficient to defeat summary judgment. See Thornhill Publ'g Co., Inc. v. GTE Corp. , 594 F.2d 730, 738-39 (9th Cir. 1979).

II. SUMMARY JUDGMENT ON NONINFRINGEMENT

Summary judgment of noninfringement requires a two-step analysis. "First, the claims of the patent must be construed to determine their scope. Second, a determination must be made as to whether the properly construed claims read on the accused device." Pitney Bowes, Inc. v. Hewlett-Packard Co. , 182 F.3d 1298, 1304 (Fed. Cir. 1999) (internal citations omitted). "The determination of infringement, both literal and under the doctrine of equivalents, is a question of fact." Lockheed Martin Corp. v. Space Sys./Loral, Inc. , 324 F.3d 1308, 1318 (Fed. Cir. 2003) ; see also Kilopass Tech. Inc. v. Sidense Corp., No. 10-cv-02066 SI, 2012 WL 3545286, at *4 (N.D. Cal. Aug. 16, 2012). Because the ultimate burden of proving infringement rests with the patentee, an accused infringer may show that summary judgment of noninfringement is proper either by producing evidence that would preclude a finding of infringement, or by showing that the evidence on file fails to create a material factual dispute as to any essential element of the patentee's case. See Novartis Corp. v. Ben Venue Labs., Inc. , 271 F.3d 1043, 1046 (Fed. Cir. 2001). "Summary judgment of noninfringement may only be granted if, after viewing the alleged facts in the light most favorable to the nonmovant and drawing all justifiable inferences in the nonmovant's favor, there is no genuine issue whether the accused device is encompassed by the patent claims." Id.

Direct infringement may be proven either by literal infringement or under the doctrine of equivalents. "Literal infringement requires the patentee to prove that the accused device contains each limitation of the asserted clai[m]." Bayer AG v. Elan Pharm. Research Corp. , 212 F.3d 1241, 1247 (Fed. Cir. 2000). "If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law." Id. "The doctrine of equivalents holds that even if an accused product does not literally infringe the asserted claims of a patent, the product may infringe if the differences between the element of the accused product at issue and the claim limitation at issue are insubstantial." Kilopass , 2012 WL 3545286, at *7. To defeat a defendant's motion for summary judgment of noninfringement under the doctrine of equivalents, the plaintiff must provide "particularized testimony and linking argument on a limitation-by-limitation basis that create[s] a genuine issue of material fact as to equivalents." AquaTex Indus., Inc. v. Techniche Solutions , 479 F.3d 1320, 1328-29 (Fed. Cir. 2007). "Whether equivalency exists may be determined based on the 'insubstantial differences' test or based on the 'triple identity' test, namely, whether the element of the accused device performs substantially the same function in substantially the same way to obtain the same result." TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc. , 529 F.3d 1364, 1376 (Fed. Cir. 2008). "Whether a claim is infringed under the doctrine of equivalents may be decided on summary judgment if no reasonable jury could determine that the limitation and the element at issue are equivalent." Zelinski v. Brunswick Corp. , 185 F.3d 1311, 1317 (Fed. Cir. 1999).

III. MOTIONS TO STRIKE

A. Patent Local Rules

"Patent Local Rule 3 requires patent disclosures early in a case and streamlines discovery by replacing the series of interrogatories that parties would likely have propounded without it." ASUS Computer Int'l v. Round Rock Research, LLC , No. 12-CV-02099-JST, 2014 WL 1463609, at *1 (N.D. Cal. Apr. 11, 2014) (internal quotation marks and modifications omitted). The disclosure requirements of Rule 3 are designed "to require parties to crystallize their theories of the case early in the litigation and to adhere to those theories once they have been disclosed." Nova Measuring Instruments Ltd. v. Nanometrics, Inc. , 417 F.Supp.2d 1121, 1123 (N.D. Cal. 2006). "They are also designed to provide structure to discovery and to enable the parties to move efficiently toward claim construction and the eventual resolution of their dispute."

Golden Bridge Tech. Inc. v. Apple, Inc., No. 12-cv-04882-PSG, 2014 WL 1928977, at *3 (N.D. Cal. May 14, 2014) (internal quotation marks omitted); see also O2 Micro Int'l Ltd. v. Monolithic Power Sys., Inc. , 467 F.3d 1355, 1365-66 (Fed. Cir. 2006) ("The local patent rules in the Northern District of California [require] both the plaintiff and the defendant in patent cases to provide early notice of their infringement and invalidity contentions, and to proceed with diligence in amending those contentions when new information comes to light in the course of discovery. The rules thus seek to balance the right to develop new information in discovery with the need for certainty as to the legal theories.").

Patent Local Rule 3-1 requires that a party claiming patent infringement serve a "Disclosure of Asserted Claims and Infringement Contentions" no more than fourteen days after the initial case management conference. This disclosure must include "[e]ach claim of each patent in suit that is allegedly infringed by each opposing party, including for each claim the applicable statutory subsections of 35 U.S.C. § 271 asserted." Patent L.R. 3-1(a). The party must also identify "where each limitation of each asserted claim is found within each Accused Instrumentality," and "[w]hether each limitation of each asserted claim is alleged to be literally present or present under the doctrine of equivalents." Patent L.R. 3-1(e). "The Patent Local Rules require a limitation-by-limitation analysis, not a boilerplate reservation." Rambus Inc. v. Hynix Semiconductor Inc. , No. C-05-00334 RMW, 2008 WL 5411564, at *3 (N.D. Cal. Dec. 29, 2008).

Patent Local Rule 3-3 requires parties accused of infringement to serve invalidity contentions. The invalidity contentions must identify "each item of prior art that allegedly anticipates each asserted claim or renders it obvious." Patent L.R. 3-3(a). If obviousness is alleged, the invalidity contentions must contain "an explanation of why the prior art renders the asserted claim obvious, including an identification of any combinations of prior art showing obviousness." Patent L.R. 3-3(b).

"Given the purpose behind [these] disclosure requirements, a party may not use an expert report to introduce new infringement theories, new infringing instrumentalities, new invalidity theories, or new prior art references not disclosed in the parties' infringement contentions or invalidity contentions." Verinata Health, Inc. v. Sequenom, Inc. , No. 12-cv-00865-SI, 2014 WL 4100638, at *3 (N.D. Cal. Aug. 20, 2014) (internal quotation marks omitted); see also Golden Bridge Tech. Inc. v. Apple, Inc. , No. 12-cv-04882-PSG, 2014 WL 1928977, at *3 (N.D. Cal. May 14, 2014) ("Expert reports may not introduce theories not set forth in contentions."). "Any invalidity theories not disclosed pursuant to Local Rule 3-3 are barred ... from presentation at trial (whether through expert opinion testimony or otherwise)." MediaTek Inc. v. Freescale Semiconductor, Inc. , No. 11-cv-05341-YGR, 2014 WL 690161, at *1 (N.D. Cal. Feb. 21, 2014). In determining whether to strike some or all of an expert report for failure to comply with the patent local rules, courts in this district have asked, "[W]ill striking the report result in not just a trial, but an overall litigation, that is more fair, or less?" Apple Inc. v. Samsung Electronics Co. , No. 11-cv-01846-PSG, 2012 WL 2499929, at *1 (N.D. Cal. June 27, 2012) ; Verinata Health , 2014 WL 4100638, at *3.

B. Federal Rules

Under Federal Rule of Civil Procedure 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12.

Federal Rule of Evidence 702 allows a qualified expert to testify "in the form of an opinion or otherwise" where:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

Expert testimony is admissible under Rule 702"if it is both relevant and reliable." Cooper v. Brown , 510 F.3d 870, 942 (9th Cir. 2007). "[R]elevance means that the evidence will assist the trier of fact to understand or determine a fact in issue." Id. Under the reliability requirement, expert testimony must "relate to scientific, technical, or other specialized knowledge, which does not include unsubstantiated speculation and subjective beliefs." Id. "Importantly, there must be a recognized body of knowledge, learning, or expertise upon which the witness relies. Where there is no field of expertise, nobody will qualify as an expert witness on the subject." Perez v. Seafood Peddler of San Rafael, Inc. , No. 12-cv-00116-WHO, 2014 WL 2810144, at *2 (N.D. Cal. June 20, 2014) (internal quotation marks omitted). The burden is on the proponent of the expert testimony to show, by a preponderance of the evidence, that the admissibility requirements are satisfied. Fed. R. Evid. 702 advisory committee notes.

"Trial courts must exercise reasonable discretion in evaluating and in determining how to evaluate the relevance and reliability of expert opinion testimony." United States v. Sandoval-Mendoza , 472 F.3d 645, 655 (9th Cir. 2006). A district courts serves as "a gatekeeper, not a factfinder." Id. at 654.

DISCUSSION

I. PRELIMINARY ISSUE - CLAIM CONSTRUCTION ARGUMENTS

Before addressing the merits of any motions, I must address the glaring issue that pervades the parties' motions for summary judgment and Daubert motions. Each side raises issues related to construing terms that were not selected by the parties for construction during the claim construction process. During that process, I addressed ten terms total as dictated by the Local Rules, allowing each side to identify its five most significant claim terms. Claim Construction Order (Dkt. No. 168). Now both sides present arguments untethered to the Claim Construction Order, which gives rise to two related issues-whether these arguments are properly raised at this stage at all, and, if so, whether they may provide a valid basis for challenging an expert via a Daubert motion.

Parties have done this before in my cases. See, e.g. , Fujifilm Corp. v. Motorola Mobility LLC , No. 12-CV-03587-WHO, 2015 WL 1265009 (N.D.Cal. March 19, 2015), Dkt Nos. 196, 255; Finjan, Inc. v. Sophos, Inc. , No. 14-CV-01197-WHO, 2016 WL 4560071 (N.D.Cal. Aug. 22, 2016), Dkt. Nos. 262. There, I followed the approach used by Judge Koh in Apple, Inc. v. Samsung Elecs. Co. , No. 12-CV-00630-LHK. She found claim constructions presented at the summary judgment stage "untimely."

2014 WL 252045, at *3 (N.D. Cal. Jan. 21, 2014). She noted, "[i]f the parties wanted to tee up summary judgment positions based on particular constructions, they 'could (and should) have sought ... construction[s] to [those] effect[s].' " Id. (quoting ePlus, Inc. v. Lawson Software, Inc. , 700 F.3d 509, 520 (Fed. Cir. 2012) ). She recognized the courts' "duty to resolve fundamental disputes regarding claim scope[,]" but found that it "fulfilled that duty when it provided a thorough claim construction opinion earlier in these proceedings." Id. (citing O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co. , 521 F.3d 1351 (Fed. Cir. 2008) ); see O2 Micro , 521 F.3d at 1362 ("[D]istrict courts are not (and should not be) required to construe every limitation present in a patent's asserted claims.").

Apple v. Samsung was "not a case like O2 Micro , where the district court erred when it declined to resolve a dispute over claim scope raised during claim construction." 2014 WL 252045, at *3. Judge Koh left many of the terms that were not selected for construction to their plain and ordinary meaning, and she explained the "[s]ound practical reasons" for a court to decline to address claim construction arguments raised for the first time during summary judgment:

The Northern District of California's local rules require the parties to narrow the number of disputed terms to 10 as part of their joint claim construction statement. See Patent L.R. 4-3(c). In accordance with those rules, the parties made their selections at claim construction as to "the terms whose construction will be most significant to the resolution of the case." Id. This requirement forces parties to identify potential case-dispositive terms at an early stage and also forces parties to help manage the scope of patent cases. The Court painstakingly adjudged the parties' claim construction disputes during the claim construction phase based on their in-depth technology tutorials and voluminous submissions of intrinsic and extrinsic evidence. The local rules and this Court did not set out a particular process for resolving claim construction disputes only to let the parties make additional arguments at the summary judgment phase untethered to those carefully structured rules.

Id. at *4. She concluded that she would "carefully consider" disputes over claim scope, even at the summary judgment stage, but only "as part of the infringement analysis, not part of the claim construction." Id. (quoting Thorner v. Sony Computer Entm't Am. LLC , 669 F.3d 1362, 1369 (Fed. Cir. 2012) ); see Thorner , 669 F.3d at 1369 (noting that issues related to the scope of claim language that are not limited by the claims or specification are "part of the infringement analysis, not part of the claim construction").

I will follow the same procedure here, and "view the parties' disputes through the lens of whether a reasonable jury, armed with the Court's claim construction as to certain terms and an instruction that the plain and ordinary meaning controls as to others, could or would necessarily conclude that the asserted claim reads on an accused device (or that a prior art reference reads on an asserted claim)." 2014 WL 252045, at *5. In determining the plain and ordinary meaning, I will look to "[t]he written description and other parts of the specification" for "contextual light[.]" Aventis Pharm. Inc. v. Amino Chemicals Ltd. , 715 F.3d 1363, 1373 (Fed. Cir. 2013). As Judge Koh noted, "the goal at this stage is not to complete the Sisyphean task of providing definitive guidance as to a term's plain and ordinary meaning[;]" rather, "the Court must determine whether a jury, 'free to rely on the plain and ordinary meaning of the term[s],' may or must conclude that the accused devices (or prior art references) infringe (or anticipate)

the asserted claims." 2014 WL 252045, at *5 (citation omitted).

As for whether claim construction arguments may provide a proper basis for striking or excluding an expert's opinion, it depends whether an expert witness has opined on a claim's scope beyond the plain and ordinary meaning of a term. Because claim construction is a matter of law to be decided by the court, Markman v. Westview Instruments, Inc. , 517 U.S. 370, 387, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), expert witnesses are not permitted to argue claim constructions to the jury. Nationwide Transp. Fin. v. Cass Info. Sys., Inc. , 523 F.3d 1051, 1058 (9th Cir. 2008) ; see also Cordis Corp. v. Boston Sci. Corp. , 561 F.3d 1319, 1337 (Fed. Cir. 2009) ("[I]t is improper to argue claim construction to the jury because the 'risk of confusing the jury is high when experts opine on claim construction.' ").

Judge Koh repeated the edict in Apple, Inc. v. Samsung Electronics Co., Ltd. that terms not construed by the court would be given their plain and ordinary meaning to a person of ordinary skill in the art. 2014 WL 660857, at *3 (N.D. Cal. Feb. 20, 2014). From this premise, she concluded that "parties may 'introduce evidence as to the plain and ordinary meaning of terms not construed by the Court to one skilled in the art,' so long as the evidence does not amount to 'arguing claim construction to the jury[.]" Id. (citations and alterations omitted); see also MediaTek Inc. v. Freescale Semiconductor, Inc. , No. 11-CV-5341 YGR, 2014 WL 971765, at *4-5 (N.D. Cal. Mar. 5, 2014) (following same framework and noting that experts whose opinions on claim language depend on extrinsic evidence "reveal[ ] an intention to argue claim construction.").

As I analyze the claim construction issues presented in the parties' Daubert motions, I must determine whether an expert's opinion "delve[s] too deeply into claim construction to be presented to the jury[,]" or, whether a party contends that the opinion (or argument) is wrong as a matter of law. Fujifilm , 2015 WL 1265009, at *6. If it is the former, the opinions may properly be stricken or excluded, but if it is the latter, the issues should have been presented in a motion for summary judgment or addressed during the claim construction phase. See id. ("Motorola's request to strike Haeberli's testimony for applying 'incorrect constructions' of claim terms amounts to a second summary judgment motion. This alone justifies denying the request."); see also Finjan , 2016 WL 4560071, at *14 (denying Daubert motion in part "because it amounts to an improper second summary judgment motion"). The problem, of course, is that there is no clear line distinguishing the two because a party that disagrees with an expert's claim construction is likely to label it wrong as a matter of law. For this reason, my analysis will focus less on the technicalities of whether the arguments are more appropriately suited for a summary judgment motion or a Daubert motion, and more on the rule that "it is improper to argue claim construction to the jury...." Cordis , 561 F.3d at 1337.

II. HUAWEI'S MOTION FOR SUMMARY JUDGMENT

A. Samsung's Antitrust Claim

1. Background

Samsung's antitrust claim is premised on its contention that Huawei never had any intention of licensing its declared SEPs on FRAND terms and conditions, but nonetheless induced ETSI into including Huawei's technology in the standards to exclude alternative mobile technologies, and then filed the Chinese injunction actions to coerce Samsung into accepting Huawei's demand for excessive royalties. Am. Counterclaims ¶¶ 260-536. It seeks treble damages under section 2 and an order enjoining Huawei from seeking injunctive relief related to its SEPs.

Huawei attacks Samsung's claim on several grounds. It insists that Samsung's expert, Dr. Jerry Hausman, focused exclusively on the effects of the Chinese injunction actions and did not analyze how Huawei allegedly obtained monopoly power in the relevant markets (through its promises to ETSI). From this premise, it argues that Samsung has not demonstrated disputed facts establishing that Huawei has engaged in exclusionary or anticompetitive conduct forbidden by the Sherman Act. Huawei's MSJ at 3. It further contends that Samsung has not demonstrated harm to competition, as opposed to any alleged harm to Samsung itself. Id. It also urges that Samsung's claim is barred by the "act of state doctrine" which prohibits United States courts from assessing the legitimacy of the acts of a foreign sovereign. Id.

Dr. Hausman identified the relevant "technology market" for the SEPs for which Huawei sought an injunction as the patent, its counterparts in other jurisdictions, and alternative technology that can implement the same functionality. Hausman Report ¶¶ 41-53 (Stake Decl. ISO Opp'n to Huawei's MSJ ¶ 7 ("Stake Decl."); id. , Ex. 6, Dkt. No. 357-15[under seal] ). He defined the geographic scope for the technology markets as worldwide and found that "Huawei is a monopolist with market power in each of the technology markets." Id. ¶¶ 54-55. He opined that "Huawei, by seeking an injunction ... gained a 'bargaining chip' that changed the threat point in the negotiations with Samsung[,]" and is thereby "seeking to exploit its market power and obtain higher royalties[,]" which "are equivalent to higher prices than would have occurred in the absence of the injunction and are thus a violation of Section 2." Id. ¶ 56; see also id. ¶ 18. He explained that "[f]iling for injunctions also should not be permitted because they confer a 'dangerous probability of success' for the SEP owner to exercise monopoly power beyond what is permitted under its FRAND obligations[,]" and "[t]he dangerous probability of success arises from the probability that a court will grant the requested injunction." Id. ¶ 58; id. n.50. And he posited that, "[a]t a minimum, Samsung's injury from the antitrust violation is comprised of the cost of multiple litigations, attorneys' fees, and the experts' fees paid to me and my team, and associated costs." Id. ¶ 60.

Samsung also cites to the negotiation history to emphasize that Huawei demanded a 1.5 percent royalty for a license to its SEPs, even though no one has ever paid that rate, which is over [redacted], and would amount to Samsung making net payments totaling over [redacted] for a license covering a twelve-year period. Ding Dep. at 208:19-22 (Stake Decl. ¶ 2; id. , Ex. 1, Dkt. No. 357-6[under seal] ); Hausman Report ¶¶ 23-29; Cheng Dep. at 137:12-15 (Stake Decl. ¶ 3; id. , Ex. 2, Dkt. No. 357-8[under seal] ); Hausman Rebuttal Report ¶ 8 (citing Lasinski Report) (Stake Decl. ¶ 10; id. , Ex. 9, Dkt. No. 357-20[under seal] ). According to Samsung, even Huawei's own expert Dr. Lasinski, acknowledged that a FRAND rate for the 4G SEPs would be [redacted] the amount demanded by Huawei. Lasinski Report ¶ 100 (Stake Decl. ¶ 4; id. , Ex. 3, Dkt. No. 357-10).

2. Legal Framework

Section 2 of the Sherman Act makes it a felony for any person to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce...." 15 U.S.C. § 2.

"To prevail on this claim, [claimant] must prove that [defendant] (1) possessed monopoly power in the relevant market, (2) willfully acquired or maintained that power through exclusionary conduct and (3) caused antitrust injury." MetroNet Servs. Corp. v. Qwest Corp. , 383 F.3d 1124, 1130 (9th Cir. 2004). The Supreme Court in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP , 540 U.S. 398, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004), analyzed the type of activities that would constitute anticompetitive or exclusionary conduct. It began from the premise, "as a general matter," that there is no duty to deal with competitors. Id. at 407-08, 124 S.Ct. 872 ; see also MetroNet , 383 F.3d at 1131 ("The Court in Verizon stated that as a general matter 'there is no duty to aid competitors.' "). It then analyzed the "few existing exceptions" to this general proposition and found that the present circumstances did not justify adding another exception to the rule. 540 U.S. at 411, 124 S.Ct. 872. In short, the possession of monopoly power and the charging of monopoly prices are not unlawful in themselves; rather, "the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct. " Id. at 407, 124 S.Ct. 872 (emphasis in original).

3. Analysis

a. Samsung Has Not Offered Evidence of Exclusionary Conduct

i. Refusal to Deal

As an initial matter, Samsung emphasizes its position that its claim is based on Huawei's refusal to deal and is not limited to Huawei's opening rate; rather, it contends that Huawei has maintained the same rate throughout negotiations, which it insists constitutes evidence of exclusionary conduct. Huawei counters that the refusal to deal doctrine of antitrust is wholly inapplicable in the standards arena. On the former point, I must view the evidence in the light most favorable to Samsung. On the latter point, I agree with Huawei, but I will nonetheless assess the evidence in the realm of a refusal to deal claim since Samsung relies on it. Even accepting Samsung's perspective of the negotiating history, it has not established that Huawei's negotiating conduct and pursuit of injunctive relief constitutes exclusionary conduct necessary to prove its monopolization claim.

Samsung relies on Federal Trade Commission v. Qualcomm Inc. , No. 17-CV-00220-LHK, 2017 WL 2774406 (N.D. Cal. June 26, 2017) to insist that Huawei's conduct violates the "antitrust duty to deal." In FTC v. Qualcomm , Judge Koh summarized Aspen Skiing Co. v. Aspen Highlands Skiing Corp. , 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985), Verizon Comm's, Inc. v. Law Offices of Curtis V. Trinko , 540 U.S. 398, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004), and MetroNet Services Corp. v. Qwest Corp. , 383 F.3d 1124 (9th Cir. 2004), and found "that a plaintiff alleges an antitrust duty to deal where the plaintiff alleges '[a] decision to alter a [voluntary] course of dealing together with evidence of anticompetitive malice,' and where the recognition of an antitrust duty to deal will not present significant judicial administrability concerns." 2017 WL 2774406, at *20 (quoting SmithKline Beecham Corp. v. Abbott Labs. , 2014 WL 6664226, at *4 (N.D. Cal. Nov. 24, 2014) ); see also Safeway Inc. v. Abbott Labs. , 2010 WL 147988, at *6 (N.D. Cal. Jan. 12, 2010) ("Taken together, Aspen Skiing and [ Verizon ] demonstrate that liability under § 2 can arise when a defendant voluntarily alters a course of dealing and 'anticompetitive malice' motivates the defendant's conduct.").

Judge Koh concluded that the FTC had adequately alleged a violation of the antitrust duty to deal under the Metronet factors because Qualcomm had voluntarily agreed to license its SEPs in accordance with FRAND and later refused to do so, its "no license-no chips" policy demonstrated that its refusal to license was motivated by anticompetitive malice, and "recognizing a duty to deal in this case would not require courts to play a larger role in setting the terms of dealing than the role that courts already play in determining appropriate royalties in patent cases." 2017 WL 2774406, at *20-22. She also determined, as the Third Circuit recognized in Broadcom Corp. v. Qualcomm Inc. , 501 F.3d 297, 316 (3d Cir. 2007), that the lack of "a regulatory structure designed to deter and remedy anticompetitive harm[,]" Verizon , 540 U.S. at 412, 124 S.Ct. 872, supports finding an antitrust duty to deal in the context of FRAND commitments and SSOs, which involve private entities and organizations. 2017 WL 2774406, at *23 ; see Broadcom , 501 F.3d at 317 ("No such regulatory framework [as in Verizon ] exists here.").

Huawei does not dispute that the first and third MetroNet factors are met here-it altered a voluntary and profitable course of dealing given its commitments to ETSI and there are no judicial administrability concerns. Rather, Huawei contends that Samsung has not offered any evidence of Huawei's anticompetitive malice, nor has it otherwise demonstrated that Huawei obtained its monopoly power in the relevant markets by exclusionary conduct. Huawei MSJ at 6.

Unlike the circumstances in Qualcomm , Samsung does not allege that Huawei refused to license its declared SEPs on any terms . See 2017 WL 2774406, at *19-23 (relying on Qualcomm's outright refusal to license FRAND-encumbered SEPs to competing chip manufacturers). Rather, Samsung's claim depends on its contention that Huawei's offers to license its SEPs were not on FRAND terms, and Huawei proceeded to pursue injunctive relief. See Hausman Dep. at 203:12-17 (testifying to his opinion that Huawei acquired monopoly power, not by exclusionary conduct, but "when the SSO adopted it [Huawei's technology], and they [Huawei] said they would not exercise it because they agree to FRAND."). It relies on Aspen Skiing for the proposition that exorbitant offers constitute a refusal to deal, and it argues that the determination of whether Huawei's offers were exorbitant is a fact question. See also MetroNet , 383 F.3d at 1132 ("An offer to deal with a competitor only on unreasonable terms and conditions can amount to a practical refusal to deal."); Safeway Inc. v. Abbott Labs. , No. C 07-05470 CW, 2010 WL 147988, at *7 (N.D. Cal. Jan. 12, 2010) ("By setting such unattractive terms, Abbott essentially refused to deal with its competitors.").

But the refusal to deal cases are inapplicable to the standards setting world. The parties do not dispute that Huawei acquired its monopoly power in the relevant markets through its declarations to ETSI, not through its alleged refusal to deal with Samsung. As discussed below, Samsung seeks to claim antitrust injury as a consumer in the relevant market. It cannot turn around and attempt to show exclusionary conduct based on its status as a competitor. In other words, Samsung has not proven that Huawei "acquired or maintained" its monopoly power through exclusionary conduct. See MetroNet , 383 F.3d at 1130.

Moreover, it is well settled that Aspen Skiing , "the leading case for § 2 liability based on refusal to cooperate with a rival," "is at or near the outer boundary of § 2 liability." Trinko , 540 U.S. at 409, 124 S.Ct. 872. "As the Supreme Court has repeatedly emphasized, there is 'no duty to deal under the terms and conditions preferred by [a competitor's] rivals[.]' " Aerotec Int'l, Inc. v. Honeywell Int'l, Inc. , 836 F.3d 1171, 1184 (9th Cir. 2016) (quoting Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc. , 555 U.S. 438, 457, 129 S.Ct. 1109, 172 L.Ed.2d 836 (2009) ); see also Townshend v. Rockwell Int'l Corp. , No. C99-0400SBA, 2000 WL 433505, at *8 (N.D. Cal. Mar. 28, 2000) (dismissing antitrust claim in part because "[a] patent owner's pursuit of optimum royalty income is not an act in restraint of trade which violates the antitrust laws."). Because Samsung has offered no evidence that Huawei has outright refused to deal with Samsung, " Aspen Skiing offers no relief here." Aerotec , 836 F.3d at 1184.

ii. Broadcom Claim

While Samsung's antitrust claim has morphed into a refusal to deal claim, Huawei notes that the claim as alleged is actually premised on the Broadcom case. E.g. , Am. Counterclaims ¶ 263 ("Huawei's promises to license its allegedly essential patents on FRAND terms and conditions were intentionally false."); id. ¶ 266 ("Huawei's actions show it has never intended to comply with its promises to license its allegedly essential patents on FRAND terms and conditions."). In Broadcom , the Third Circuit analyzed "whether Broadcom ha[d] stated actionable anticompetitive conduct with allegations that Qualcomm deceived relevant SDOs [standards-determining organizations] into adopting the UMTS [Universal Mobile Telecommunications System] standard by committing to license its WCDMA technology on FRAND terms and, later, after lock-in occurred, demanding non-FRAND royalties." 501 F.3d at 313. The court held that

(1) in a consensus-oriented private standard-setting environment, (2) a patent holder's intentionally false promise to license essential proprietary technology on FRAND terms, (3) coupled with an SDO's reliance on that promise when including the technology in a standard, and (4) the patent holder's subsequent breach of that promise, is actionable anticompetitive conduct.

Id. at 314 ; see also Apple Inc. v. Samsung Elecs. Co. , No. 11-CV-01846-LHK, 2011 WL 4948567, at *4 (N.D. Cal. Oct. 18, 2011) ("[I]ntentionally false promises to SSOs regarding licenses with FRAND terms can give rise to actionable claims under Section 2 of the Sherman Act.").

Samsung points to Huawei's initial SEP licensing proposal to Samsung in 2008, which Samsung contends was not FRAND, simultaneous with its patent disclosures to ETSI, and its pursuit of injunction-only relief in China, to substantiate its claim that Huawei "did not intend to license its proprietary technology at FRAND rates at the time it promised ETSI that it would do so." Opp'n to Huawei MSJ at 4-5. And it emphasizes that "the issue of intent is nearly always 'a fact question.' " Id. at 6. The latter point gains it little ground: "Until recently, summary judgment was disfavored in antitrust cases, but any presumption against the granting of summary judgment in complex antitrust cases has now disappeared[.]" In re Online DVD-Rental Antitrust Litig. , 779 F.3d 914, 921 (9th Cir. 2015) (internal quotation marks, citations, and alterations omitted). Accordingly, Samsung cannot merely rely on the factual nature of the inquiry into intent to survive Huawei's motion.

Its former point does not support its claim that Huawei made intentionally false promises to ETSI. As an initial matter, Samsung cannot (and does not even attempt to) explain the fact that Huawei has licensed its SEPs to other entities as part of its commitments to ETSI. Moreover, Huawei underscores (and Samsung acknowledges) that Huawei had publicly announced as early as 2008 that it expected to seek a royalty for its LTE portfolio of up to 1.5 percent, which would be "negotiable in bilateral negotiations." See Stasik Expert Report Regarding ETSI and Standards Setting Matters at ¶ 66, submitted in Apple Inc. v. Samsung Electronics Co., Ltd. et. al. , Case No. 11-cv-01846-LHK, 2012 WL 929867 (N.D. Cal. Mar. 16, 2012) (including Huawei's public statement) (McBride Decl. ISO Reply ¶ 2; id. , Ex. 44; Dkt. No. 371-9 [under seal] ); J. Ding Dep. at 208:13-25 (noting Huawei's public announcement) (Stake Decl. ¶ 2; id. , Ex. 1; Dkt. No. 357-6 [under seal] ). Samsung has previously acknowledged that there is nothing wrong with beginning negotiations at a "headline" rate. Chang Dep. at 32-34 (McBride Decl. ISO Reply ¶ 3; id. , Ex. 45; Dkt. No. 371-10 [under seal] ) (acknowledging Stasik's view that Samsung's [redacted] percent royalty offer was FRAND and would be an appropriate headline rate to open negotiations); see also Leonard Dep. at 70:15-71:6 (McBride Decl. ISO Huawei's Reply ISO MSJ ¶ 4, id. , Ex. 46)(testifying that starting negotiations at an opening rate of 1.5 percent would not by itself, be problematic). As Huawei puts it, "[t]he fact that [it] opened negotiations at its previously stated public rate, and maintained that opening offer for a time in the absence of any responsive counter-proposal from Samsung, would not permit a reasonably jury to conclude that Huawei never intended to abide by its FRAND commitments." Reply ISO Huawei MSJ at 4. And the fact that the headline rate was public knowledge certainly undermines any claim that it unlawfully obtained its monopoly power through its representations to ETSI.

As previously mentioned, Samsung insists that its claim is not limited to Huawei's opening rate; it is based on Huawei maintaining that rate throughout the course of negotiations. It also cites to Huawei's subsequent pursuit of injunctive-only relief in China to substantiate its claim that Huawei had no intention of licensing its SEPs on FRAND terms. On the other hand, Huawei identifies several facts negating any possible inference that it never intended to abide by its FRAND obligations: it has repeatedly offered to submit this dispute to binding arbitration, it initially sought to bifurcate the issues in this case so that the FRAND-related issues could be addressed on an expedited basis before delving into the patent issues, and it is and has been willing to withdraw the Chinese injunction actions so long as Samsung agrees to a binding process to determine the FRAND terms of a cross-license between the parties. Reply at 4-5. Huawei's eagerness to resolve the FRAND issue is not indicative of a party who refuses to deal.

At the hearing, Samsung insisted that Broadcom is irrelevant to a refusal to deal claim, and that intent is not required under section 2. Samsung's arguments are unpersuasive. While section 2 does not explicitly reference the "intent" of the accused, the case law makes clear that a certain mental state is an explicit element of both a refusal to deal claim of the type Samsung wishes to pursue here and a Broadcom claim of the type it actually pursues. See Qualcomm , 2017 WL 2774406, at *20 (requiring evidence of anticompetitive malice); Broadcom , 501 F.3d at 314 (requiring an intentionally false promise).

It further insisted that Huawei is wrong to contend that Samsung cannot prove bad intent with conduct occurring after the patents were declared essential. But courts have explicitly declined to expand Broadcom "to reach violations of FRAND commitments occurring after the standard's adoption." E.g. , Godo Kaisha IP Bridge 1 v. TCL Commc'n Tech. Holdings Ltd. , No. CV 15-634-SLR-SRF, 2017 WL 750700, at *7 (D. Del. Feb. 27, 2017).

Samsung has not offered any evidence of Huawei's fraudulent intent, but even if it had, it would still be insufficient to establish unlawful exclusionary conduct. See Rambus Inc. v. F.T.C. , 522 F.3d 456, 466 (D.C. Cir. 2008) ("[A]n otherwise lawful monopolist's end-run around price constraints, even when deceptive or fraudulent, does not alone present a harm to competition in the monopolized market."). Compare Aerotec , 836 F.3d at 1184, 1189 (affirming summary judgment on refusal to deal claim where plaintiff "simply did not like the business terms" offered by the alleged monopolist), with Hynix Semiconductor Inc. v. Rambus, Inc. , 527 F.Supp.2d 1084, 1098 (N.D. Cal. 2007) (finding sufficient allegations of anticompetitive conduct where "[t]he Manufacturers have alleged that Rambus participated in a standards-setting organization, understood its intellectual property disclosure policy, withheld information about its patent applications, waited until the industry was irreversibly 'locked in' to the standard, and then began a litigation campaign to extract royalties.").

That failure defeats Samsung's antitrust claim as a matter of law. But the claim also fails because Samsung has not offered any evidence of antitrust injury.

4. Samsung Has Not Demonstrated Antitrust Injury

"The antitrust laws ... were enacted for 'the protection of competition not competitors[.]' " Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. , 429 U.S. 477, 488, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). As a result, an antitrust claimant "must demonstrate injury to competition in the market as a whole, not merely injury to itself as a competitor." Gorlick Distribution Centers, LLC v. Car Sound Exhaust Sys., Inc. , 723 F.3d 1019, 1024-25 (9th Cir. 2013).

The only "injury" to Samsung disclosed in Dr. Hausman's Report is Samsung's litigation costs, which Dr. Hausman conceded were "harms to Samsung," not "harms to consumers." Hausman Report ¶ 60; see also Hausman Dep. at 214:6-9 (Ex. 7). While litigation costs may constitute antitrust injury in some cases, Samsung has not established those circumstances here. See Apple, Inc. v. Motorola Mobility, Inc. , 886 F.Supp.2d 1061, 1076 (W.D. Wis. 2012) (finding no antitrust injury where antitrust claimant refused to pay the allegedly excessive royalty rate and the only purported injury was the attorney fees and costs incurred in response to patent litigation).Compare supra section I.A.3 (finding no evidence of anticompetitive conduct), with Hynix , 527 F.Supp.2d at 1098 ("Because Rambus' alleged conduct at JEDEC can independently qualify as an anticompetitive harm under section 2, the court finds that Rambus' current patent litigation is 'causally connected' to that behavior and therefore properly included in an 'anticompetitive scheme' allegation.").

In opposition, Samsung points to Huawei's purported market power in the relevant markets, see Opp'n at 9 (citing Hausman Report ¶¶ 55-56), and urges that it is harmed as a purchaser of Huawei's SEPs in the relevant markets identified by Dr. Hausman (which Huawei has not challenged here), so its injury arises as a customer, not a competitor. But Huawei's market power alone does not establish any antitrust injury. See Opp'n at 9 (arguing that "it will pay overcharges and/or incur losses as a result of Huawei's monopolization."). And Samsung's potential harm likewise does not "demonstrate injury to competition in the market as a whole," rather than "injury to [Samsung] as a competitor." Gorlick , 723 F.3d at 1024-25. Samsung has not demonstrated the requisite injury to competition.

To the extent that Samsung intends to rely on the potential harm to consumers in the event the Chinese injunctions are enforced, Opp'n at 9 n.8, that speculative harm would at most substantiate a claim of attempted monopolization. Samsung has not alleged or pursued such a claim.

In sum, Samsung has not shown disputed facts establishing Huawei's anticompetitive conduct or any antitrust injury. Huawei's motion for summary judgment as to Samsung's counterclaim for antitrust violation is GRANTED.

B. Noninfringement as to the '350 Patent

Asserted claim 1 of the '350 Patent requires "receiving a cell-specific parameter (PB ) signaled by one or more higher layers from the base station; and determining a cell-specific ratio (pB /pA )...." '350 patent at 14:31-35. Huawei insists that it is entitled to summary judgment of noninfringement, both literal and under the doctrine of equivalents (DOE), because the undisputed evidence shows that the quantization coefficients used to determine the ratio are different for different phones within a cell, Samsung has offered no evidence that Huawei's UE's "determine" the cell-specific ratio, and Samsung's DOE theory relies on inadequate boilerplate recitations. Huawei MSJ at 12-13. Samsung counters with evidence that Huawei's accused products "determine a cell-specific ratio" by selecting values called quantization coefficients that correspond to the same cell-specific ratios required under the LTE standard. Opp'n at 17-18; see Huawei Technical Document produced as SAMSUNG-HNDCA-000614275-614370 (Stake Decl. ¶ 12; id. , Ex. 11); Huawei Technical Document produced as SAMSUNG-HNDCA-000614371-614439 (Stake Decl. ¶ 13; id. , Ex. 12).

One of Samsung's technical experts, Dr. Paul Prucnal, provided a technical analysis of documents, testimony, and source code to show that Huawei's accused products determine a cell-specific ratio as required under the LTE standard by selecting a value called a quantization coefficient that corresponds to a cell-specific ratio. Prucnal Expert Report ¶¶ 557-570 (Stake Decl. ¶ 15; id. , Ex. 14; Dkt. No. 357-29 [under seal] ); see also Prucnal Dep. at 89:23-90:9 (explaining his demonstrative showing that the accused products use the same cell-specific ratios) (Stake Decl. ¶ 17; id. , Ex. 16; Dkt. No. 357-33 [under seal] ); Prucnal Demonstrative (showing the same cell-specific ratios) (Stake Decl. ¶ 18; id., Ex. 17; Dkt. No. 357-35 [under seal] ). Samsung also highlights Huawei's admission that the accused products practice the applicable 3GPP standard. Huawei's March 9, 2018 Supplemental Responses to Samsung's Interrogatories at 21-23 (Stake Decl. ¶ 16; id. , Ex. 15; Dkt. No. 357-13 [under seal] ).

Huawei wishes to limit the meaning of "determining" to "calculating"; similar to Samsung's attempts to limit "obtaining" and "allocating" with respect to the '239 patent. See infra section V.A.3. Huawei did not select "determining" for claim construction, and the term will be given the full range of its plain and ordinary meaning. Viewing this evidence in the light most favorable to Samsung, it has identified disputed evidence that Huawei's accused products literally infringe the '350 patent, claim 1 by "determin[ing] a cell-specific ratio" when the UEs select quantization coefficients that correspond to the cell-specific ratio.

Even if I did not find disputed evidence that the accused products literally infringe, they would at least infringe under a DOE theory since Huawei's arguments against infringement largely rely on whether the UE's act of selecting a quantization coefficient is equivalent to determining a cell-specific ratio. See Reply ISO Huawei MSJ at 8 (noting that the Prucnal Report fails to show the calculation of any ratios). Dr. Prucnal's opinions, which link the accused devices to a particular claim limitation, Prucnal Report ¶ 590 (explaining DOE theory for the '350 patent, claim 1), are not the type of boilerplate DOE assertions rejected by courts. E.g. , PersonalWeb Techs. LLC v. Int'l Bus. Machines Corp. , No. 16-CV-01266-EJD, 2017 WL 2180980, at *16 (N.D. Cal. May 18, 2017) ("[E]ven if the Court were to look past PersonalWeb's failure to comply with the patent local rules, summary judgment is appropriate because PersonalWeb has failed to provide sufficient evidence to create a triable issue of fact that there is infringement under the doctrine of equivalents."); OptimumPath, LLC v. Belkin Int'l, Inc. , No. C 09- 01398 CW, 2011 WL 1399257, at *8 (N.D. Cal. Apr. 12, 2011) ("OptimumPath also relies on a blanket statement, asserting substantial similarities as to the instrumentalities, but failing to link those similarities to particular claims or limitations within the '281 patent.").

To the extent that Huawei wishes to rely on the inadequacy of Samsung's disclosures in its infringement contentions, that alone does not justify granting its motion for summary judgment. "While the Rules are thereby intended to hasten resolution on the merits, they are not ... a mechanism for resolving the merits of the parties' dispute." FusionArc, Inc. v. Solidus Networks, Inc. , No. C 06-06760RMW( ), 2007 WL 1052900, at *2 (N.D. Cal. Apr. 5, 2007) ; see also PersonalWeb , 2017 WL 2180980, at *16 ("Courts in this district have cited deficient infringement contentions as additional bases for granting summary judgment of noninfringement with respect to doctrine of equivalents. However, what ultimately governs the summary judgment determination is the standard under Fed. R. Civ. R. 56(c)." (citations omitted) ).

Huawei's motion for summary judgment of noninfringement of claim 1 of the '350 patent is DENIED.

C. Noninfringement as to the '130 Patent

Independent claim 13 recites the following "method for transmitting a signal in a slot of a sub-frame in a wireless communication system...:

mapping a reference signal to a middle symbol in the slot;

mapping the data information to remaining symbols in the slot that are not used to map the reference signal;

mapping the acknowledgement information to first symbols among the remaining symbols in the slot, the first symbols not being used to map reference signals and the first symbols being directly adjacent to the middle symbol; and

...

'130 Patent, claim 13 at 8:30-37 (Dkt. No. 328-34). Huawei contends that this method claim, and dependent claim 16, recite a series of active steps that must be performed in a precise order, and Samsung's expert failed to offer any evidence that Huawei's products perform the accused functionality in the order claimed[,]" and "the undisputed evidence shows that Huawei products do not perform the function in the order claimed. Huawei's MSJ at 17 (citing Bambos Inf. Report ¶¶ 550-632); see also Bambos Inf. Report ¶ 468; Mahon Decl. ¶¶ 32-35.

Samsung counters that Huawei's argument depends on injecting its proposed construction that "[t]he second and third steps must be performed after the first." Joint Claim Construction St. at 3 (Dkt. No. 124-3). But, according to Samsung, Huawei elected not to include this claim term in those terms subject to claim construction, thereby waiving its opportunity to have the claim construed and relegating the claim term to its plain and ordinary meaning.

The Federal Circuit has explained, "[a]s a general rule, 'unless the steps of a method claim actually recite an order, the steps are not ordinarily construed to require one.' " Mformation Techs., Inc. v. Research in Motion Ltd. , 764 F.3d 1392, 1398 (Fed. Cir. 2014) (alterations omitted) (quoting Interactive Gift Express, Inc. v. Compuserve Inc. , 256 F.3d 1323, 1342 (Fed. Cir. 2001) ). "However, a claim 'requires an ordering of steps when the claim language, as a matter of logic or grammar, requires that the steps be performed in the order written, or the specification directly or implicitly requires' an order of steps." Id.

In Samsung's view, "[a]nalyzing the word 'remaining' in context, as required, reveals that the plain and ordinary meaning refers only to a spatial location for (1) mapping the reference signal and (2) mapping the data and acknowledgement information (as opposed to a temporal order in which those steps need to occur)." Opp'n to Huawei's MSJ at 16 (emphasis in original) (citing Ex. 20 ¶¶ 174-77). Samsung's attempts to limit the plain and ordinary meaning of "remaining" to a spatial location rather than a temporal order are unpersuasive. Samsung wishes to have the middle symbol "reserved" for the reference signal without first mapping it. But the claim does not dictate reserving the middle symbol in the slot for the reference symbol. To the contrary, the claims disclose mapping the reference symbol. As Huawei explains, the "remaining symbols in the slot that are not used to map the reference signal" do not exist until the reference signal is mapped to the middle symbol in the slot. Huawei MSJ at 17. The plain language of the claim terms requires an "ordering of steps" because no symbols are "remaining" until the reference symbol is first mapped to the middle symbol in the slots. See Mformation Techs. , 764 F.3d at 1398.

Assuming an order inherent in the claim language, Huawei contends that Samsung failed to offer evidence that Huawei's products perform the claimed "mapping" in the order required. Samsung does not appear to explicitly contest this assertion, but offers the opinion of its expert, Dr. Nicholas Bambos, that Huawei's products map a reference signal to a middle symbol in the slot, data to the remaining symbols in the slot, and acknowledgement information to first symbols among the remaining symbols...." Bambos Expert Report ¶¶ 530-49 (Stake Decl. ¶ 21; id. , Ex. 20; Dkt. No. 357-40 [under seal] ); id. ¶¶ 550-94, 595-632 (McBride Decl. ¶ 37; id. , Ex. 36; Dkt. No. 327-51 [under seal] ). Dr. Bambos offered his "opinion that the difference between each of the Accused Instrumentalities and the claim elements in claims 13 and claims 16 are insubstantial" because the accused products are "performing substantially the same function (i.e., PUSCH signal transmission) in substantially the same way