Sharp and Vizio not shown to infringe Wi-Lan’s flicker effect patents, FC panel affirmed

Wi-Lan Inc. v. Sharp Electronics Corporation, Vizio, Inc.

Docket No. 2020-1041, -1043 (


April 6, 2021

Brief Summary:  DC grant of SJ of non-infringement and claim construction findings affirmed.

Summary:  Wi-Lan appealed DC finding that neither Sharp nor Vizio infringe US 6,359,654 and 6,490,250 directed to “interlacing video” (the “flicker” effect) and stream multiplexers, respectively.  The allegedly infringing products are “smart” televisions.  The DC granted summary judgment (SJ) to Sharp and Vizio “because Wi-LAN had failed to provide admissible evidence of the source code that Wi-LAN needed to prove its infringement theories”, source code provided by third party chip manufacturers and employee declarations were inadmissible, and “Wi-LAN had failed to raise a genuine issue of material fact as to noninfringement”.   In this appeal, Wi-LAN argued” that the source code printout constituted a business record, admissible under the business records exception to the hearsay rule” (Crash Dummy, FC 2010; Fed. Rule Evidence Rule 803(6)).  The FC panel agreed with the DC that Wi-Lan failed to comply with Rule 803(6) because it did not “establish by testimony from a ‘custodian or other another qualified witness’ that the documents satisfied the requirements of the Rule” and “that the declarants would be available to testify at trial”.  Wi-Lan also argued the source code evidence should be admissible under FRE 901(b)(4) (“all the circumstances” “support a finding that the item is what the proponent claims it is’”) and FRE 703 (material underlying expert testimony must be authenticated), but the FC panel found the DC did not abuse its discretion in excluding it.  The FC panel also concluded the DC was not required to provide Wi-Lan with “additional time to obtain an admissible version of the source code”.  Wi-Lan also disputed the DC’s construction of “output multimedia data stream” in the ‘250 claims as being limited to a “combined audio and video stream that are output from the system” but the FC panel agreed with the DC based on the patent’s specification and figures.  The FC panel also agreed with the DC’s construction of “a multimedia processor, coupled to the data rate analyzer…based on the patent’s consistent use of ‘coupled’”.  The DC judgment was therefore affirmed.

This entry was posted in Claim Construction, Expert Testimony, Infringement. Bookmark the permalink.

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