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Metaswitch Networks Ltd. v. Genband U.S. LLC

United States District Court, E.D. Texas, Marshall Division

August 28, 2017

METASWITCH NETWORKS LTD, Plaintiff,
v.
GENBAND U.S. LLC, GENBAND MANAGEMENT SERVICES CORP., Defendants.

          MEMORANDUM OPINION AND ORDER

          RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE.

         Pending before the Court are the Parties' post-trial motions. Plaintiff Metaswitch Networks Ltd. (“Metaswitch”) filed its Rule 50(b) Motion for Judgment as a Matter of Law and Rule 59 Motion for a New Trial (Dkt. No. 376). Defendants Genband U.S. LLC and Genband Management Services Corp. (“Genband”) filed the following post-trial motions: (1) Genband's Renewed Motion for Judgment as a Matter of Law and Motion for a New Trial (Dkt. No. 377); and (2) Genband's Renewed Motion for Judgment as a Matter of Law on Issues Not Expressly Decided by the Jury and for Dismissal with Prejudice of Metaswitch's License Defenses (Dkt. No. 371).

         Having considered the Parties' arguments and for the reasons set forth below, the Court DENIES Metaswitch's Rule 50(b) Motion for Judgment as a Matter of Law and Rule 59 Motion for a New Trial (Dkt. No. 376); the Court DENIES Genband's Renewed Motion for Judgment as a Matter of Law and Motion for a New Trial (Dkt. No. 377); and the Court DENIES Genband's Renewed Motion for Judgment as a Matter of Law on Issues Not Expressly Decided by the Jury and for Dismissal with Prejudice of Metaswitch's License Defenses (Dkt. No. 371).

         I. Background

         On July 7, 2014, Metaswitch filed a complaint against Genband, alleging infringement of seven different patents: United States Patent Nos. 6, 816, 482 (“the ʼ482 Patent”); 7, 881, 282 (“the ʼ282 Patent”); 6, 807, 273 (“the ʼ273 Patent”); 8, 611, 522 (“the ʼ522 Patent”); 8, 687, 640 (“the ʼ640 Patent”); 7, 657, 018 (“the ʼ018 Patent”); and 8, 488, 768 (“the ʼ768 Patent”). (Dkt. No. 1.) Genband asserted certain counterclaims, which were amended on April 16, 2015, and which included infringement counterclaims as to five different patents: United States Patent Nos. 6, 879, 667 (“the ʼ667 Patent”); 7, 680, 252 (“the ʼ252 Patent”); 7, 953, 210 (“the ʼ210 Patent”); 8, 600, 006 (“the ʼ006 Patent”); and 7, 162, 024 (“the ʼ024 Patent”). (Dkt. No. 75 at 26-51.) On July 20, 2015, the Court entered an order staying trial as to all non-patent counterclaims, and all the patent claims and counterclaims then proceeded to trial. (Dkt. No. 123 at 1.) At trial, Metaswitch asserted patent infringement of six patents and Genband counterclaimed asserting infringement as to four patents. (Dkt. No. 348.)

         After a four-day trial, the jury reached a unanimous verdict finding non-infringement as to all of the combined fourteen claims presented by both parties and also finding invalidity as to each of the nine claims from where invalidity had been pled by either party. (Dkt. No. 348.)[1]

         II. Legal Standards

         A. Motion for Judgment as a Matter of Law

         Judgment as a matter of law is appropriate if “the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for [a] party” on an issue. Fed.R.Civ.P. 50(a)(1). “The grant or denial of a motion for judgment as a matter of law is a procedural issue not unique to patent law, reviewed under the law of the regional circuit in which the appeal from the district court would usually lie.” Finisar Corp. v. DirectTV Group, Inc., 523 F.3d 1323, 1332 (Fed. Cir. 2008). The Fifth Circuit “uses the same standard to review the verdict that the district court used in first passing on the motion.” Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995). Thus, a jury verdict must be upheld, and judgment as a matter of law may not be granted, unless “there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did.” Id. at 700. The jury's verdict must be supported by “substantial evidence” in support of each element of the claims. Am. Home Assurance Co. v. United Space Alliance, 378 F.3d 482, 487 (5th Cir. 2004).

         Under Fifth Circuit law, a court is to be “especially deferential” to a jury's verdict, and must not reverse the jury's findings unless they are not supported by substantial evidence. Baisden v. I'm Ready Prods., Inc., 693 F.3d 491, 499 (5th Cir. 2012). “Substantial evidence is defined as evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.” Threlkeld v. Total Petroleum, Inc., 211 F.3d 887, 891 (5th Cir. 2000). The moving party is entitled to judgment as a matter of law, “only if the evidence points so strongly and so overwhelmingly in favor of the nonmoving party that no reasonable juror could return a contrary verdict.” Int'l Ins. Co. v. RSR Corp., 426 F.3d 281, 296 (5th Cir. 2005). However, “[t]here must be more than a mere scintilla of evidence in the record to prevent judgment as a matter of law in favor of the movant.” Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 606 (5th Cir. 2007).

         In evaluating a motion for judgment as a matter of law, a court must “draw all reasonable inferences in the light most favorable to the verdict and cannot substitute other inferences that [the court] might regard as more reasonable.” E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 451 (5th Cir. 2013) (citation omitted). However, a court may not make credibility determinations or weigh the evidence, as those are solely functions of the jury. See Ellis v. Weasler Eng'g Inc., 258 F.3d 326, 337 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000)). “[T]he court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'” Id. at 151 (citation omitted).

         B. Motion for a New Trial

         Federal Rule of Civil Procedure 59(a) provides that 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 reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a). In considering a motion for a new trial, the Federal Circuit applies the law of the regional circuit. Z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340, 1347 (Fed. Cir. 2007). The court can grant a new trial “based on its appraisal of the fairness of the trial and the reliability of the jury's verdict, ” Smith v. Transworld Drilling Co., 773 F.2d 610, 612-13 (5th Cir. 1985). “[C]ourts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done, and the burden of showing harmful error rests on the party seeking the new trial.” Perret v. Nationwide Mutual Ins. Co., Case Nos. 4:10-cv-522, 4:10-cv-523, 2013 WL 12099400, at *1 (E.D. Tex. July 19, 2013). See also Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d. § 2803 at 46-47 (1995). “A new trial may be granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 612-13 (5th Cir. 1985). The decision to grant or deny a new trial is committed to the sound discretion of the district court. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)

         III. Metaswitch's Rule 50(b) Motion for Judgment as a Matter of Law and Rule 59 Motion for a New Trial

         A. Judgment as a Matter of Law for Infringement of the Asserted Claims of the ʼ273 Patent

         Metaswitch moves for judgment as a matter of law that Genband's accused products infringe Claims 18, 19, 24, and 27 of the ʼ273 Patent. The invention claimed in the ʼ273 Patent “relates generally to the field of telecommunications, particularly to digital switching systems used to route calls within telecommunication networks, and more particularly to a method for bypassing the common control and switch matrix of a digital switching system.” ʼ273 Patent at 1:10-14. Genband argues that a reasonable jury could reach the conclusion reflected in the verdict; i.e.: that Metaswitch failed to prove by a preponderance of the evidence that Genband's accused products do not include several of the limitations in the asserted claims, including the “line and trunk interfaces, ” “digital transmission facility, ” “media gateway, ” or “means for connecting.” (Dkt. No. 383 at 1-2.)

         1. “Line and trunk interface” (Claims 18, 19, 24)

         Claim 18, from which Claims 19 and 24 depends, requires accessing internal signals used to control “line and trunk interfaces” of a class five digital switching system in a telecommunications network. ʼ273 Patent at 14:36-50. During trial, Genband's expert, Dr. Brody, testified that the claimed “line and trunk interface” requires both a line interface and a trunk interface, and that the accused products only connect to line frames. (Dkt. No. 376 at 4.) From this explanation, Dr. Brody concluded that the accused products do not infringe Claims 18, 19, and 24 because the Genband products do not connect to “trunk interfaces of a class five digital switching system.” (Dkt. No. 383 at 2.) Metaswitch argues that Dr. Brody's interpretation of the “line and trunk interface” limitation is contrary to the plain meaning of the claim language. (Dkt. No. 376 at 4.) Although Metaswitch did not raise “line and trunk interface” as a disputed term during the claim construction process, Metaswitch now contends that “line and trunk” modifies “interface” such that a “line and trunk interface” is a single interface that can connect to lines and trunks. (Dkt. No. 376 at 4-5.) At trial, Metaswitch's expert testified that “line and trunk” modifies “interface” such that the claims are met by line interfaces, trunk interfaces, or both. (Dkt. No. 388 at 1.) Metaswitch notes that Genband's invalidity expert, Mr. Stillerman, agreed during his deposition that “line and trunk” modifies “interface” such that the claims are met by line interfaces, trunk interfaces, or both, and “only changed his testimony after a break with his attorney.” (Dkt. No. 388 at 1.) In addition, Metaswitch argues that Genband's own corporate witness, Mr. O'Brien, “admitted that frames that allegedly only connect to lines in the accused products are described using both “line” and “trunk, ” consistent with Metaswitch's understanding of the claims.” (Dkt. No. 388 at 1.) Accordingly, Metaswitch concludes that no reasonable jury could have relied on Dr. Brody's testimony. (Dkt. No. 388 at 1.)

         However, Mr. Stillerman confirmed at his deposition, in his deposition errata, and at trial that he understands “line and trunk” to require both line interfaces and trunk interfaces. (Dkt. No. 383 at 3.) In addition, Mr. O'Brien's testimony was specifically referring to the “line/trunk” or just “line trunk” limitation of the asserted claims, not the “line and trunk” limitation of Claim 18, 19, and 24. (Dkt. No. 358 at 187:5-22; Dkt. No. 383 at 2-3.) Genband argues that a reasonable jury could find unpersuasive Metaswitch's argument that “line and trunk interfaces” can be met by line interfaces alone. (Dkt. No. 394 at 1.) The Court agrees with Genband. There is substantial evidence based on Dr. Brody's and Mr. Stillerman's testimony to support a jury's finding that the “line and trunk interfaces” were not met by line interfaces alone, and that as a result, Genband's accused products do not infringe Claims 18, 19, 24, and 27 of the ʼ273 Patent. While Metaswitch's expert testified that the “line and trunk interfaces” limitation does not require both a line interface and a trunk interface, the jury was entitled to credit Dr. Brody's and Mr. Stillerman's explanations and reject Metaswitch's argument that “line and trunk” modifies “interface” such that the claims are met by line interfaces, trunk interfaces, or both.

         2. “Digital transmission facility” (Claims 18, 19, 24, 27)

         Claims 18, 19, 24, and 27 of the ʼ273 Patent also require a connection to a “digital transmission facility.” ʼ273 Patent at 14:36-16:25. Similar to the Parties' arguments about the “line and trunk interface” limitations, the Parties disagree on the “plain and ordinary” meaning of a “digital transmission facility.” (Dkt. No. 383 at 3-4.) Metaswitch argues that the plain meaning of “digital transmission facility” is a facility that transmits digital data. (Dkt. No. 376 at 5.) However, Genband's expert, Dr. Brody, testified that in telecommunications, a facility transmits voice, and the limitation of a “digital transmission facility” as claimed in the ʼ273 Patent must be limited to a facility that only carries voice. (Dkt. No. 359 at 21:12-23:7; Dkt. No. 358 at 187:23-188:13.) Under Genband's reasoning, the accused structures, including backplane connections, local cables, traces printed on a circuit board, and Ethernet switch fabric do not satisfy the facilities required by the claim because they lack a facility that only carries voice. (Dkt. No. 383 at 4-5.) Here, the jury was presented with more than adequate evidence upon which it could have concluded that Genband's C15, G2, and G6 products do not include a “digital transmission facility.” “[W]here the parties and the district court elect to provide the jury only with the claim language itself, and do not provide an interpretation of the language in the light of the specification and the prosecution history, it is too late at the JMOL stage to argue for or adopt a new and more detailed interpretation of the claim language and test the jury verdict by that new and more detailed interpretation.” Hewlett-Packard Co. v. Mustek Sys. Inc., 340 F.3d 1314, 1321 (Fed. Cir. 2003). Genband provided substantial evidence in the form of expert testimony that in the context of the patent the plain and ordinary meaning of “digital transmission facility” is limited to facilities transmitting voice. The jury was entitled to weigh and consider the substantial evidence discussed above in favor of Genband. See Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 697 (Fed. Cir. 2008).

         3. “Media gateway” (Claim 24)

         Claim 24 of the ʼ273 Patent requires a “media gateway” to be “within the telecommunications network” and connected such that the media gateway can “communicate with the internal signals.” ʼ273 Patent at 15:19-24. The media gateway is connected to a digital transmission facility, which in turn connects to the switching system interface. See ʼ273 Patent at 14:51-58 (Claim 19, upon which Claim 24 depends on, is a method that further comprises the step of establishing “a second connection between the digital transmission facility and the switching system interface”); id. at 15:19-24 (Claim 24 claims “[t]he method of . . . claim 19 further comprising the steps of connecting a media gateway within the telecommunications network to the second connection to enable the media gateway to communicate with the internal signals”). Metaswitch argues that the C15 product meets the “media gateway” limitation because the C15 port module, which is a single device, is both the “switching system interface” and “media gateway.” (Dkt. No. 376 at 6-9; Dkt. No. 388 at 2.) Metaswitch similarly argues that the G2 and G6 products, which are individual devices, meet both the “switching system interface” and “media gateway” limitations. (Dkt. No. 376 at 6-9; Dkt. No. 388 at 2; Dkt. No. 356 at 43:13-44:4, 45:21- 46:19.)

         Genband's expert, Dr. Brody, testified that the switching system interface, the digital transmission facility, and the media gateway are distinct components of the network. (Dkt. No. 358 at 188:23-191:3.) (“Coming out of the switching system interface over the digital transmission facility are - is now the signaling and the voice, and that goes to the local terminal, and the local terminal in this case is a [media] gateway.”). At trial, Genband argued that the accused products lack the claimed “media gateway” because Claim 24 requires a configuration in which the digital transmission facility is connected between the switching system interface and media gateway. (Dkt. No. 383 at 6.) For example, Figure 3 of the ʼ273 Patent illustrates an embodiment in which the media gateway is connected to the switching system through a digital transmission facility. (Dkt. No. 383 at 5.) While Claims 24 and 19 do not explicitly require the digital transmission facility to be located between the media gateway and the switching system interface, at the very least, there is substantial evidence in the form of testimony and the embodiments of the ʼ273 Patent to support a reasonable jury's finding that the C15 port module, the G2, and the G6 are not both “media gateways” and “switching system interfaces.”

         4. “Means for connecting”

         Claim 27 requires a “means for connecting the network interface to a digital transmission facility” within the telecommunications network. ʼ273 Patent at 16:19-21. On August 10, 2015, this Court construed the term as a means-plus-function term for which the function is “connecting the network interface to a digital transmission facility” and the corresponding structure is “cables, digital transmission facilities, and equivalents thereof.” (Dkt. No. 136 at 45-46.) Genband contends that the jury was presented at trial with substantial evidence from which it could reasonably find non-infringement of Claim 27 because Metaswitch's expert did not identify any cables, digital transmission facilities, or equivalents that connect the alleged network interface and a digital transmission facility within the network. (Dkt. No. 383 at 6.)

         Metaswitch argues that its expert, Dr. Burger, testified that the C15 contains “the corresponding structure through the cables that are used to connect the port module to the LCM, and do the G2 and G6-thus infringing.” (Dkt. No. 388 at 3) (citations omitted). Although, as Genband correctly points out, this testimony is related to “means for connecting . . . to at least one line/trunk interface, ” and not “means for connecting . . . to a digital transmission facility, ” Dr. Burger later testified that the C15, the G2, and the G6 are connected to a digital transmission facility “us[ing] cables.” (Dkt. No. 356 at 55-56) (“So, again, we have the network interface, the G2 and G6, and it's connected to a digital transmission facility - again, IP. And I may have neglected to mention for the C15, that IP - and they did say in the manual - uses cables. We have the structure as well.”). Despite Dr. Burger's testimony, Genband's expert, Dr. Brody, stated that “Dr. Burger hasn't identified any cables, digital transmission facilities, or the equivalents that connect the network interface that he's identified to a digital transmission facility within the network.” Considering this record, there is substantial evidence to support a reasonable jury's finding that Dr. Burger did not sufficiently identify the cables used to connect the network interface to a digital transmission facility in the C15, G2, and G5 products. Dr. Brody provided contrary testimony to that of Dr. Burger. However, the jury was in the best position to weigh the evidence and the credibility of the competing witnesses and as a result determine whether it found Dr. Brody or Dr. Burger to be more persuasive. See Apple Inc. v. Samsung Elecs. Co., Ltd., 839 F.3d 1034, 1045 (Fed. Cir. 2016) (en banc).

         The Court denies Metaswitch's JMOL with respect to infringement of the ʼ273 Patent.

         5. Doctrine of Equivalents

         An accused product that does not literally infringe a patent claim may nonetheless infringe under the doctrine of equivalents. The doctrine of equivalents is applied “as an objective inquiry on an element-by-element basis.” Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 40 (1997). “An analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element, or whether the substitute element plays a role substantially different from the claimed element.” Id. (noting that the imprecision of the doctrine of equivalents standard is considerably reduced by “[a] focus on individual elements and a special vigilance against allowing the concept of equivalence to eliminate completely any such elements”).

         Metaswitch argues that the accused products infringe under the doctrine of equivalents because, as Dr. Burger testified, the accused products “are still performing the same function, that of bypassing the matrix and common control, that they're still using the line and trunk frames, and they're still getting the same result, being able to bring people from the legacy Class 5 network to the modern softswitch network and doing it at that capital-saving way-money-saving way of keeping those line/trunk frames.” (Dkt. No. 376 at 9; Dkt. No. 356 at 69:8-20.) Genband's argues that Dr. Burger's testimony is a conclusory opinion that the accused products bypass the matrix and common control while still using line/trunk frames. (Dkt. No. 383 at 7.) Genband states that because Dr. Burger did not provide a limitation-by-limitation analysis of equivalence, a jury could have reasonably concluded that Metaswitch did not meet its burden under the doctrine of equivalents. (Dkt. No. 383 at 7.) The Court agrees. A reasonable jury could have concluded that Dr. Burger's testimony was not an adequate limitation-by-limitation analysis and was not sufficient to meet Metaswitch's burden of establishing infringement under the doctrine of equivalents. In addition, Genband presented substantial evidence rebutting Metaswitch's doctrine of equivalents argument upon which a reasonable jury could have relied. (Dkt. No. 394 at 3; Dkt. No. 358 at 193:17-194:12.)

         6. Indirect Infringement

         It is axiomatic that “[t]here can be no inducement or contributory infringement without an underlying act of direct infringement.” Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1326 (Fed. Cir. 2004) (citation omitted); see also Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1272 (Fed. Cir. 2004) (“Indirect infringement, whether inducement to infringe or contributory infringement, can only arise in the presence of direct infringement. . . .”). For the reasons discussed above, there is substantial evidence from which a reasonable jury could conclude that Genband does not directly infringe the asserted claims of the ʼ273 Patent, and accordingly, does not indirectly infringe the claims-at-issue. See supra Sections I.A.1-5.

         Moreover, Genband presented substantial evidence that Genband did not believe it infringed the ʼ273 Patent. Unlike direct infringement, “liability for inducing infringement attaches only if the defendant knew of the patent and that ‘the induced acts constitute patent infringement.'” Commil USA, LLC v. Cisco Sys., Inc., 135 S.Ct. 1920, 1926, 1930 (2015) (holding that a belief in noninfringement, but not invalidity, is a defense to indirect infringement). During trial, David Smith, Metaswitch's corporate representative and the inventor of the ʼ273 Patent, testified that the first idea that he came up with for his company “is actually the subject of what we're here for today, but at the time, and for years afterwards, we called it a CAP5.” (Dkt. No. 358 at 165:11-166:4.) Mr. Smith testified that when he discussed using CAP5 as a way of dealing with existing DMS line frames with Genband, one of Genband's employees was opposed to CAP5 because Genband allegedly had an alternative to CAP5. (Dkt. No. 385 at 171:15-172:4) (“A. The alternative was to bring DS30s out of the line frames to these-this new softswitch that they had acquired with Nortel, which was the CS 1500.”). The jury is entitled to believe or disbelieve testimony presented to it. Star Sci., Inc. v. R.J. Reynolds Tobacco Co., 655 F.3d 1364, 1378 (Fed. Cir. 2011). In this situation, it was not unreasonable for the jury to accept Mr. Smith's testimony and find that Genband did not have the scienter required for indirect infringement.

         The Court denies Metaswitch's JMOL with respect to indirect infringement of the ʼ273 Patent.

         B. Judgment as a Matter of Law for Infringement of the ʼ482 or ʼ282 Patents

         Metaswitch argues that the undisputed evidence offered at trial showed that Genband's G2, G5, and G6 products directly and indirectly infringe Claims 6 and 7 of the ʼ482 Patent and Claim 2 of the ʼ282 Patent. (Dkt. No. 376 at 11.) The claimed inventions described in the ʼ482 and the ʼ282 Patents generally relate to a system and methods for interfacing a broadband network and a circuit switched network. ʼ282 Patent at 1:20-37, 7:37-8:39; ʼ482 Patent at 1:13-31, 8:28-50.

         1. “Positioned between” configuration

         Both the ʼ282 and the ʼ482 Patent claims require an “interface device, ” such as a “gateway device, ” positioned between a circuit switch network and a broadband network. ʼ282 Patent at 7:37-8:5; ʼ482 Patent at 8:28-38. The ʼ282 and ʼ482 Patents explain that resources of the circuit switched network can become unnecessarily taxed if relied upon to route every call, including voice calls originating and terminating in the broadband network. ʼ482 Patent at 1:45-46 (“This reliance on a switch that resides in the PSTN is undesirable because the Class 5 switch is accessed for each voice call, even if the voice call originates and terminates in the broadband network.”). As a result, the interface device claimed in the ʼ282 and ʼ482 Patents determines a path on a call-by-call basis. (Dkt. No. 359 at 54:18-55:19) If the path does not include the circuit switched network, the interface device offloads the call from the circuit switch. Id. (“[T]he call has to be routed via that path without using the circuit-switched network.”).

         Genband argues that there was substantial evidence for a reasonable jury to conclude that in order to meet the claim requirements of both (1) being “positioned between” a circuit switched network device, and (2) not using the circuit switched network device unless the path includes it, the accused products “would have to be configured to simultaneously connect to the class 5 switch and to the softswitch in such a way that calls from the alleged broadband device could be routed to either the softswitch or the class 5 switch depending on the path of the call.” (Dkt. No. 383 at 10.) Genband argues that there was substantial evidence that neither Genband nor its customers use this dual configuration, referred to as “AGW/PLG, ” in the accused products. Id.

         In response, Metaswitch contends that the accused products are configured “to simultaneously connect to the class 5 switch and to the softswitch.” (Dkt. No. 388 at 4) (“To operate as an AGW, by design, the accused products are configured to be positioned between a broadband network device (the uDLC) with RDT, and a circuit switched network device (the switch) with an IDT. These same products are also configured to operate as PLGs, including while simultaneously operating as AGWs.” (citations omitted)). Metaswitch also argues that even if the accused products in the field are set up as either an AGW or PLG, but not both, the configuration is irrelevant because “[t]he evidence clearly establishes the accused products are configured to infringe” and “Genband would still infringe through testing of this functionality in the accused products.” Id. While this Court recognizes that “to infringe a claim that recites capability and not actual operation, an accused device ‘need only be capable of operating' in the described mode, ” the language of the claims dictates whether an infringement has occurred. Finjan, Inc. v. Secure Comput. Corp., 626 F.3d 1197, 1204 (Fed. ...


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