Implicit, LLC v. NETSCOUT Systems, Inc.
2:18-cv-00053
E.D. Tex.Jun 3, 2020Background
- Plaintiff Implicit, LLC sued NetScout Systems, Inc. alleging infringement of three patents (the ’683, ’790, and ’104 Patents) related to methods/systems for data demultiplexing and packet inspection; accused products were InfiniStream/nGeniusOne, GeoProbe/Iris, and Arbor.
- The jury trial addressed six asserted claims; the jury found NetScout not liable for infringement and the court entered final judgment for NetScout.
- Implicit moved under Rule 50(b) for judgment as a matter of law (JMOL) that the accused products infringe and alternatively sought a new trial under Rule 59.
- Implicit’s JMOL/new-trial arguments focused chiefly on (1) the court’s claim constructions for “sequence of routines” and for “execute/convert (TCP)” limitations, and (2) alleged improper testimony or demonstratives by NetScout.
- The court reviewed the trial record, claim construction, expert and fact-witness testimony, and prior stipulations and concluded the jury verdict was supported by substantial evidence.
- The court denied Implicit’s motions for JMOL and for a new trial and provisionally sealed the order pending agreed redactions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether JMOL should be entered on "sequence of routines" limitation | Implicit: record proves flow-table entries (created after first packet) establish a sequence of routines not pre‑created, so infringement is established | NetScout: claim construction required sequences created after first packet; evidence shows software routine arrangements (source code/paths) are created pre‑deployment, so no infringement | Denied — substantial evidence supported jury finding of no infringement because witnesses and expert testified paths are pre-created in code |
| Whether JMOL should be entered on "execute/convert (TCP)" limitations | Implicit: pointers to TCP header and processing advancing to application-level show TCP was the outermost header and conversions occurred | NetScout: outermost header is Ethernet for received packets; pointers/bookmark do not change packet format; no conversion of outermost header occurs | Denied — substantial evidence supported jury finding noninfringement; testimony showed packets’ outermost header remained Ethernet and pointers do not convert packets |
| Whether claim construction errors justify a new trial | Implicit: the court mis-construed "sequence of routines" and "execute/convert" terms, prejudicing Implicit | NetScout: claim construction was correct and relied on prior briefing and intrinsic evidence | Denied — court reaffirmed its earlier constructions and found no basis for a retrial on that ground |
| Whether NetScout improperly elicited expert opinion through fact witnesses or used a prior-art demonstrative | Implicit: fact witnesses gave expert-like infringement opinions and NetScout used a figure from prior art contrary to a stipulation | NetScout: witnesses testified to factual, personal knowledge of product operation; demonstrative was used as a neutral hypothetical and complied with the stipulation | Denied — court found the testimony proper (or objections waived for failure to contemporaneously object) and that demonstrative use did not violate stipulation |
Key Cases Cited
- Finisar Corp. v. DirectTV Grp., Inc., 523 F.3d 1323 (Fed. Cir. 2008) (JMOL standards in patent cases apply regional circuit law)
- Hiltgen v. Sumrall, 47 F.3d 695 (5th Cir. 1995) (jury verdict reviewed under same standard as district court Rule 50 rulings)
- Baisden v. I’m Ready Prods., Inc., 693 F.3d 491 (5th Cir. 2012) (district court must be especially deferential to jury verdicts)
- Int’l Ins. Co. v. RSR Corp., 426 F.3d 281 (5th Cir. 2005) (JMOL requires evidence to point overwhelmingly in movant’s favor)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (trial court cannot make credibility determinations in JMOL review)
- z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340 (Fed. Cir. 2007) (new-trial standards in patent cases follow regional circuit law)
- ACCO Brands, Inc. v. ABA Locks Mfr. Co., 501 F.3d 1307 (Fed. Cir. 2007) (infringement is a question of fact reviewed for substantial evidence)
- Lemelson v. United States, 752 F.2d 1538 (Fed. Cir. 1985) (plaintiff must prove presence of every claim element for infringement)
- CP Interests, Inc. v. Cal. Pools, Inc., 238 F.3d 690 (5th Cir. 2001) (failure to contemporaneously object to testimony may constitute waiver)