Wi-Lan Inc. v. Sharp Electronics Corporation

United States Court of Appeals
for the Federal Circuit
______________________
WI-LAN INC.,
Plaintiff-Appellant
v.
SHARP ELECTRONICS CORPORATION,
Defendant-Appellee
______________________
2020-1041
______________________
Appeal from the United States District Court for the
District of Delaware in No. 1:15-cv-00379-LPS, Chief Judge
Leonard P. Stark.
-------------------------------------------------
WI-LAN INC.,
Plaintiff-Appellant
v.
VIZIO, INC.,
Defendant-Appellee
______________________
2020-1043
______________________
Case: 20-1041 Document: 73 Page: 1 Filed: 04/06/2021

-- 1 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 2
Appeal from the United States District Court for the
District of Delaware in No. 1:15-cv-00788-LPS, Chief Judge
Leonard P. Stark.
______________________
Decided: April 6, 2021
______________________
D ANIEL F LETCHER O LEJKO , Bragalone Olejko Saad PC,
Dallas, TX, argued for plaintiff-appellant. Also repre-
sented by M ONTE BOND , TERRY SAAD .
JOHN C. O'Q UINN , Kirkland & Ellis LLP, Washington,
DC, argued for all defendants-appellees. Defendant-appel-
lee Sharp Electronics Corporation also represented by
WILLIAM H. BURGESS ; ADAM R. ALPER, San Francisco, CA;
G IANNI C UTRI, K ATHERINE E. RHOADES , Chicago, IL;
M ICHAEL W. D E VRIES , Los Angeles, CA.
M ARK S. D AVIES , Orrick, Herrington & Sutcliffe LLP,
Washington, DC, for defendant-appellee VIZIO, Inc. Also
represented by ELIZABETH M OULTON , Menlo Park, CA;
STANLEY M ARTIN G IBSON , Jeffer Mangels Butler & Mitch-
ell, Los Angeles, CA.
______________________
Before D YK , TARANTO , and STOLL, Circuit Judges.
D YK , Circuit Judge.
Wi-LAN Inc. appeals two related judgments of the
United States District Court for the District of Delaware,
on summary judgment in one instance and by stipulation
in the other, holding that Sharp Electronics Corporation
and Vizio, Inc. did not infringe the asserted claims of U.S.
Patent No. 6,359,654 (“the ’654 patent”) and U.S. Patent
No. 6,490,250 (“the ’250 patent”). We affirm.
Case: 20-1041 Document: 73 Page: 2 Filed: 04/06/2021

-- 2 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 3
BACKGROUND
Wi-LAN is the owner of the ’654 and ’250 patents. The
’654 patent concerns “methods to display interlaced video
on [a] noninterlaced monitor.” ’654 patent, abstract. This
is also known as “deinterlacing.” Interlaced video was de-
veloped at the inception of electronic television in 1936 and
became the standardized video format adopted by the Na-
tional Television Systems Committee. Most television sets
used interlaced video formats during that time period and
for decades afterwards. Interlacing video was developed to
prevent a “flicker” effect, an effect that results from the dif-
ference in the frame rate of the television set and the frame
rate in which a program was filmed. To interlace a video,
the video frame is split into two fields, which correspond to
the odd and even lines of a video frame. The first field
(comprising of data on the odd lines) is scanned onto a tel-
evision set in the first 1/60th of a second, and the second
field (comprising of data on the even lines) is scanned in
the next 1/60th of a second. Because the fields are dis-
played on television sets at a rate of 60 fields per second,
the viewer does not notice any missing content and per-
ceives the two fields as a single frame.
The need for deinterlacing arose in the 1980s and
1990s due to the development of higher-quality television
sets and the need to display television video signals on com-
puter monitors. All modern television sets use noninter-
laced displays. Noninterlaced video, unlike interlaced
video, displays an entire frame every 1/60th of a second and
allows for increased detail to be displayed on a screen. The
’654 patent does not claim to have invented deinterlacing
but claims “methods and systems for displaying interlaced
video on monitors [that] are non-interlaced.” ’654 patent,
col. 1 ll. 13–15.
The other patent at issue here, the ’250 patent, “relates
generally to multimedia encoders and specifically [to] an
Case: 20-1041 Document: 73 Page: 3 Filed: 04/06/2021

-- 3 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 4
integrated multimedia stream multiplexer.” ’250 patent,
col. 1 ll. 5–7. A stream multiplexer receives separate audio
and video data streams and combines them into a single
multimedia data stream. The ’250 patent is directed to a
system for dynamically adjusting the bit rates of the input
audio and video data streams to obtain a combined multi-
media data stream with an optimal bit rate.
Vizio currently sells and through 2015 Sharp sold
“smart” television sets. On May 11, 2015, Wi-LAN brought
suit for patent infringement against Sharp, alleging direct
and induced infringement of various claims of the ’654 and
’250 patents. On September 8, 2015, Wi-LAN filed a simi-
lar complaint against Vizio, asserting the same claims of
the ’654 and ’250 patents. The district court did not con-
solidate the Vizio and Sharp cases but managed the cases
in parallel.
Wi-LAN accused Sharp and Vizio of infringing claims
1, 4, and 9 of the ’654 patent and claims 1, 4, and 6 of the
’250 patent. Claim 1 of the ’654 patent is an independent
method claim and claims 4 and 9 depend on claim 1. Claim
1 of the ’250 patent is an independent apparatus claim and
claims 4 and 6 depend on claim 1.
The deinterlacing functions (which allegedly infringe
the asserted method claims of the ’654 patent) and the com-
ponents that optimize bit streaming (which allegedly in-
fringe the asserted system claims of the ’250 patent) reside
on each television set’s “system-on-chip.” A system-on-chip
combines numerous functions of a system (e.g., storage,
memory, processing, and control), previously implemented
in multiple chip sets, onto a single chip.
On February 27, 2018, the district court issued an or-
der construing certain terms of the ’654 patent and the ’250
patent. Following the district court’s claim construction or-
der, Wi-LAN conceded that that it could not prove infringe-
ment of the asserted claims of the ’250 patent under the
Case: 20-1041 Document: 73 Page: 4 Filed: 04/06/2021

-- 4 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 5
district court’s constructions of “output multimedia data
stream” and “a multimedia processor, coupled to the data
rate analyzer.” These two terms are common to all as-
serted claims of the ’250 patent. The district court entered
a stipulated judgment of noninfringement of the ’250 pa-
tent.
With respect to the ’654 patent, Wi-LAN alleged both
direct and induced infringement. The parties filed cross-
motions for summary judgment on the issue of infringe-
ment. The district court explained that Wi-LAN has
known that it could not establish infringement without es-
tablishing that the source code of Sharp’s and Vizio’s sys-
tems actually practiced the patented method.
The district court granted Sharp and Vizio’s motion for
summary judgment of noninfringement, holding that Wi-
LAN lacked sufficient admissible evidence to prove direct
infringement. The district court found that the printout of
the source code that Wi-LAN sought to use as evidence was
inadmissible.
Wi-LAN appealed in each case. Because the underly-
ing cases were related, this court consolidated the appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(1).
D ISCUSSION
I
With respect to the ’654 patent, Wi-LAN challenges the
district court’s grant of summary judgment of noninfringe-
ment to Vizio and Sharp.1 We review a grant of summary
1 On appeal, Wi-LAN also argues that the district
erred in certain discovery rulings that adversely affected
its ability to prove induced infringement of the asserted
claims of the ’654 patent. Because we hold that Wi-LAN
Case: 20-1041 Document: 73 Page: 5 Filed: 04/06/2021

-- 5 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 6
judgment de novo. MobileMedia Ideas LLC v. Apple Inc.,
780 F.3d 1159, 1164 (Fed. Cir. 2015) (citing Gonzalez v.
Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 257 (3d Cir.
2012)). We apply regional circuit law to evidentiary deter-
minations. TecSec, Inc. v. Adobe Inc., 978 F.3d 1278, 1285
(Fed. Cir. 2020). The Third Circuit reviews a district
court’s evidentiary rulings for abuse of discretion. Acumed
LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211
(3d Cir. 2009).
The district court granted summary judgment because
Wi-LAN had failed to provide admissible evidence of the
source code that Wi-LAN needed to prove its infringement
theories as to claims 1, 4, and 9.2
cannot establish direct infringement, we do not need to
reach these issues related to induced infringement.
2 Claim 1 of the ’654 patent (the only asserted inde-
pendent claim) provides:
1. A method for displaying interlaced video data on
a non-interlaced monitor, the interlaced video data
comprising a plurality of paired fields, each pair of
fields being vertically offset relative to each other
by one-half of a field line spacing distance, each
field comprising a plurality of lines of video data,
the method including:
(a) capturing a first field and a second field of each
pair of fields into respective buffers;
(b) scaling each of the first field and second field of
each pair of fields to fill vertical resolution of the
non-interlaced monitor;
(c) adjusting one of the first field or second field of
the pair of fields to substantially correct for the
Case: 20-1041 Document: 73 Page: 6 Filed: 04/06/2021

-- 6 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 7
Wi-LAN supplied documents from the third-party chip
manufacturers purported to be the source code printouts
together with declarations from employees of the manufac-
turers purporting to authenticate the source code
printouts. The declarations stated that the source code
“provide[d] the implementation of the deinterlacing pro-
cess for digital video data in a specified list of chips” and
“add[ed] that there [we]re ‘no material differences’ between
the version of code produced and any versions used since
2009.” J.A. 26–27 (footnote omitted). The source code in-
cluded “added commentary on the printed excepts.” J.A.
29. The district court held that this evidence was inadmis-
sible and that Wi-LAN had failed to raise a genuine issue
of material fact as to noninfringement. On appeal, Wi-LAN
has several theories as to why the district court erred and
why the source code printout was admissible.
A
Wi-LAN argues that the source code printout consti-
tuted a business record, admissible under the business rec-
ords exception to the hearsay rule. “The business records
exception allows admission of records of regularly con-
ducted activity through the testimony of a custodian or
vertical offset between the pairs of fields, where
said adjusting is performed concurrently with said
scaling;
(d) displaying the first field of each pair of fields on
the non-interlaced monitor in a first time period;
and
(e) displaying the second field of each pair of fields
on the non-interlaced monitor in a second time pe-
riod subsequent to the first time period.
’654 patent, col. 10 ll. 46–65.
Case: 20-1041 Document: 73 Page: 7 Filed: 04/06/2021

-- 7 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 8
other qualified witness.” Crash Dummy Movie, LLC v.
Mattel, Inc., 601 F.3d 1387, 1392 (Fed. Cir. 2010) (citing
Fed. R. Evid. 803(6)). Specifically, the hearsay exception of
Rule 803(6) permits a “record” that meets the following five
requirements to be admitted into evidence:
(A) the record was made at or near the time by—or
from information transmitted by—someone with
knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization, oc-
cupation, or calling, whether or not for profit;
(C) making the record was a regular practice of
that activity;
(D) all of these conditions are shown by the testi-
mony of the custodian or another qualified witness,
or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certifi-
cation;[3] and
(E) the opponent does not show that the source of
information or the method or circumstance of prep-
aration indicate a lack of trustworthiness.
Fed. R. Evid. 803(6). “[I]f the proponent has established
the stated requirements of the exception—regular business
with regularly kept record, source with personal
knowledge, record made timely, and foundation testimony
3 Under Rule 902(11), a domestic record is self-au-
thenticating if it “meets the requirements of Rule
803(6)(A)–(C), as shown by a certification of the custodian
or another qualified person,” and the adverse party had
“reasonable written notice of the intent to offer the record
. . . so that the party has a fair opportunity to challenge
[it].” Fed. R. Evid. 902(11).
Case: 20-1041 Document: 73 Page: 8 Filed: 04/06/2021

-- 8 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 9
or certification—then the burden is on the opponent to
show that the source of information or the method or cir-
cumstances of preparation indicate a lack of trustworthi-
ness.” Fed. R. Evid. 803(6) advisory committee’s notes to
2014 amendments.
To establish that the source code printout was an ad-
missible business record under Rule 803(6), Wi-LAN was
required to establish by testimony from a “custodian or
other another qualified witness” that the documents satis-
fied the requirements of the Rule. Wi-LAN argues that it
properly authenticated the source code printout through
the declarations of the chip manufacturers’ employees. We
agree with the district court that the declarations could not
be used to authenticate the source code printout on the the-
ory that the declarations were a proxy for trial testimony
or themselves admissible as business records.
As Wi-LAN notes, declarations are typically used at
summary judgment as a proxy for trial testimony. But dec-
larations cannot be used for this purpose unless the wit-
ness will be available to testify at trial. Under Federal
Rule of Civil Procedure 56(c)(2), Wi-LAN was required to
“explain the admissible form that is anticipated.” Fed. R.
Civ. P. 56(c)(2) advisory committee’s notes on 2010 amend-
ments. Wi-LAN argued that it met this burden by explain-
ing that the declarants were available to testify at trial.
The district court, however, found the opposite. Indeed,
when asked by the court at the summary judgment hearing
whether the declarants would appear at trial, Wi-LAN’s
counsel responded that Wi-LAN did not “think that [it
would be] able to force them to come to trial.” J.A.
15,398–99.
Wi-LAN thus did not establish that the declarants
would be available to testify at trial and, as a result, the
declarations could not be used as a substitute for trial tes-
timony. E.g., Fraternal Order of Police, Lodge 1 v. City of
Case: 20-1041 Document: 73 Page: 9 Filed: 04/06/2021

-- 9 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 10
Camden, 842 F.3d 231, 238 (3d Cir. 2016) (testimony ad-
missible if declarants were available to testify at trial); J.F.
Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d
Cir. 1990) (“[H]earsay evidence produced in an affidavit op-
posing summary judgment may be considered if the out-of-
court declarant could later present the evidence through
direct testimony, i.e., in a form that ‘would be admissible
at trial.’” (quoting Williams v. Borough of West Chester, 891
F.2d 458, 465 n.12 (3d Cir. 1989)).
Wi-LAN also seems to argue that it properly authenti-
cated the source code printout because the declarations
were custodial declarations that were themselves admissi-
ble as business records under Rule 803(6). Wi-LAN, how-
ever, admits that it obtained the source code printout and
declarations by filing lawsuits against the manufacturers
and then dismissing the lawsuits without prejudice after
the manufacturers provided Wi-LAN with the source code
printout and declarations it sought. Wi-LAN even explains
that “[t]he lawsuits were necessary to secure production of
the source code and declarations because [the system-on-
chip manufacturers] had refused to cooperate in discovery.”
Appellant’s Br. 51. The declarations thus do not constitute
a “record [that] was kept in the course of a regularly con-
ducted activity of a business.” Fed. R. Evid. 803(6)(B). In-
stead, the declarations were created and prepared for the
purposes of litigation, placing them outside the scope of the
exception. As a result, the declarations were not admissi-
ble as business records for use to authenticate the source
code printout.
Wi-LAN argues alternatively that, under Third Circuit
law, these deficiencies in the declarations did not preclude
their use. It bases its theory on the Third Circuit’s view
that “the testimony of the custodian or another qualified
witness” under Rule 803(6)(D) “can be met by documentary
evidence, affidavits, or admissions of the parties, i.e., by cir-
cumstantial evidence, or by a combination of direct and
Case: 20-1041 Document: 73 Page: 10 Filed: 04/06/2021

-- 10 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 11
circumstantial evidence.” In re Japanese Elec. Prods. An-
titrust Litig., 723 F.2d 238, 288 (3d Cir. 1983), rev’d on
other grounds sub nom. Matsushita Elec. Indus. Co. v. Zen-
ith Radio Corp., 475 U.S. 574 (1986). The Third Circuit
adopted this view after concluding that “[i]t would make
little sense to require live witness testimony every time a
business record is offered when, from the other materials
open for the court’s consideration, it can make the required
finding to its own satisfaction.” Id.
The Third Circuit’s approach runs counter to the text
of Rule 803(6), which requires the conditions of the Rule to
be shown “by the testimony of the custodian or another
qualified witness[] or by a certification that complies with
Rule 902(11) or (12) or with a statute permitting certifica-
tion.” Fed. R. Evid. 803(6)(D). Its view appears not to have
been widely adopted. See 5 Weinstein’s Federal Evidence
§ 803.08[c] & n.76. But even under this approach, the dec-
larations do not suffice because Wi-LAN does not meet
Rule 803(6)’s final requirement that “the opponent does not
show that the source of information or the method or cir-
cumstance of preparation indicate a lack of trustworthi-
ness.” Fed. R. Evid. 803(6)(E).
The district court concluded that Sharp and Vizio “have
demonstrated a lack of trustworthiness in the materials;
the source code contains inconsistent dates in the
metadata, copyright, and revisions histories as well as
added commentary on the printed excerpts.” J.A. 29. The
court also found that Wi-LAN “failed to obtain change logs,
file comparisons, or other evidence of code revisions that
might clear up the inconsistencies in the code.” J.A. 29.
And the district court found that
[t]he circumstances surrounding the production,
including the fact that the [system-on-chip] manu-
facturers originally claimed that they could not
produce one version of source code for all [system-
Case: 20-1041 Document: 73 Page: 11 Filed: 04/06/2021

-- 11 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 12
on-chips] at issue in the case, raise[d] further con-
cern as to the credibility of both the source code and
the [system-on-chip] declarations seeking to au-
thenticate the code.
Id. The Third Circuit has affirmed a district court’s deci-
sion to not admit records on similar grounds. See SEC v.
Hughes Capital Corp., 124 F.3d 449, 456 (3d Cir. 1997)
(holding that a district court did not abuse its discretion in
refusing to admit altered copies of a record under Rule
803(6) because the records indicated “a lack of trustworthi-
ness”).
The district court did not abuse its discretion in holding
that the source code printout does not constitute a business
record admissible under Rule 803(6).
B
Wi-LAN also appears to argue that the district court
should have found the source code printout admissible un-
der Federal Rule of Evidence 901(b)(4). Rule 901(b)(4) per-
mits a record to be admitted into evidence if “[t]he
appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken together
with all the circumstances” “support a finding that the item
is what the proponent claims it is.” Fed. R. Evid. 901(a),
(b)(4).
In support of its Rule 901(b)(4) argument, Wi-LAN
states only that “there was no legitimate reason to question
the trustworthiness of the source code.” Appellant’s Br. 54.
The district court concluded that the source code printout’s
“appearance, contents, substance, internal patterns, [and]
other distinctive characteristics,” Fed. R. Evid. 901(b)(4),
did not satisfy Rule 901(b)(4)’s strictures “given the highly
dubious circumstances surrounding the production and the
lack of indicia of trustworthiness in the source code,” J.A.
30, as described in the previous Section. On this record,
Case: 20-1041 Document: 73 Page: 12 Filed: 04/06/2021

-- 12 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 13
the district court did not abuse its discretion in refusing to
treat the source code printout as evidence under Rule
901(b)(4).
C
Wi-LAN alternatively argues that the source code
printout should have been admitted into evidence under
Federal Rule of Evidence 703.4 Wi-LAN’s expert submitted
a report stating that Sharp’s and Vizio’s television sets in-
fringe the claimed methods of the ’654 patent by the use of
the source code. Wi-LAN’s expert did not attempt to au-
thenticate the source code printout. But Wi-LAN argues
that its expert should be able to opine on the meaning of
the inadmissible source code printout and to provide the
inadmissible source code printout to the jury despite
Wi-LAN’s failure to authenticate the source code printout.
Wi-LAN’s argument presents two separate and distinct
questions: (1) whether the source code printout was admis-
sible because it was relied on by the expert and (2) whether
the expert’s testimony relying on the source code was ad-
missible to establish infringement. The answer to the first
question is “no” because expert reliance does not translate
4 An expert may base an opinion on facts or data
in the case that the expert has been made aware of
or personally observed. If experts in the particular
field would reasonably rely on those kinds of facts
or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admit-
ted. But if the facts or data would otherwise be in-
admissible, the proponent of the opinion may
disclose them to the jury only if their probative
value in helping the jury evaluate the opinion sub-
stantially outweighs their prejudicial effect.
Fed. R. Evid. 703.
Case: 20-1041 Document: 73 Page: 13 Filed: 04/06/2021

-- 13 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 14
to admissibility. The answer to the second question is also
“no” because Wi-LAN did not establish that experts in the
field “reasonably rely on” unauthenticated source code.
As to the first question, “Rule 703 does not make ad-
missible otherwise inadmissible evidence.” 4 Weinstein’s
Federal Evidence § 703.05 n.12. That is because “Rule 703
is not, itself, an exception to or exclusion from the hearsay
rule or any other evidence rule that makes the underlying
information inadmissible.” Id. § 703.05. Rule 703 does not
authorize admitting inadmissible evidence “on the pre-
tense that it is the basis for expert opinion when, in fact,
the expert adds nothing to the [inadmissible evidence]
other than transmitting [it] to the jury.” 29 Charles Alan
Wright, Arthur R. Miller & Victor J. Gold, Federal Practice
and Procedure § 6274 (2d ed. 2020). “In such a case, Rule
703 is simply inapplicable and the usual rules regulating
the admissibility of evidence control.” Id. Rule 703 permits
the proponent of an expert’s opinion to disclose the under-
lying material to a jury if “experts in the particular field
would reasonably rely on” the underlying material and “if
[the underlying material’s] probative value in helping the
jury evaluate the opinion substantially outweighs [its] prej-
udicial effect.” Fed. R. Evid. 703. But “the trial judge must
give a limiting instruction upon request, informing the jury
that the underlying information must not be used for sub-
stantive purposes.” Fed. R. Evid. 703 advisory committee’s
notes to the 2000 amendments. These principles have been
reaffirmed repeatedly.
Exemplary is the Second Circuit’s decision in United
States v. Mejia, 545 F.3d 179 (2d Cir. 2008), where the court
held that the government’s expert witness could not simply
repeat hearsay to the jury. The Second Circuit explained
that the expert “identified hearsay as the source of much of
his information” during cross-examination and “did not an-
alyze his source materials so much as repeat their con-
tents.” Id. at 197–98. Because the expert simply provided
Case: 20-1041 Document: 73 Page: 14 Filed: 04/06/2021

-- 14 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 15
second-hand evidence to the jury, the court held that the
expert’s testimony fell outside the permissible bounds of
Rule 703. Id. at 198.
The Second Circuit reached a similar conclusion in
Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir.
2013). There, the Second Circuit held that, although Rule
703 “permit[ted] experts some leeway” in basing their opin-
ions on inadmissible evidence, “a party cannot call an ex-
pert simply as a conduit for introducing hearsay under the
guise that the testifying expert used the hearsay as the ba-
sis of his testimony.” Id. at 136 (citation omitted). Rather,
the court explained, “[t]he appropriate way to adduce fac-
tual details of specific past events is, where possible,
through persons who witnessed those events.” Id.
Similarly, the Fifth Circuit has explained that “[c]ourts
. . . must serve a gate-keeping function with respect to Rule
703 opinions to ensure ‘the expert isn’t being used as a ve-
hicle for circumventing the rules of evidence.’” Factory
Mut. Ins. Co. v. Alon USA L.P., 705 F.3d 518, 524 (5th Cir.
2013) (quoting In re James Wilson Assocs., 965 F.2d 160,
173 (7th Cir. 1992)). The court further explained that
“Rule 703 ‘was not intended to abolish the hearsay rule and
to allow a witness, under the guise of giving expert testi-
mony, to in effect become the mouthpiece of the witnesses
on whose statements or opinions the expert purports to
base his opinion.’” Id. (citation omitted).
In United States v. Tomasian, 784 F.2d 782 (7th Cir.
1986), the Seventh Circuit held that the trial court cor-
rectly prevented an expert from testifying when the expert
did not plan to offer his own opinion but, instead, planned
to repeat the out-of-court opinion of another person. Id. at
786. The court explained that “Rule 703 does not sanction
Case: 20-1041 Document: 73 Page: 15 Filed: 04/06/2021

-- 15 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 16
the simple transmission of hearsay; it only permits an ex-
pert opinion based on hearsay.” Id.5
United States v. Rollins, 862 F.2d 1282 (7th Cir. 1989),
cited in the advisory committee notes to Rule 703, is also
informative. There, the Seventh Circuit noted that it
would be “improper” to use an expert as a “mouthpiece” to
relay hearsay to the jury but held that the expert could
properly give testimony interpreting hearsay because ex-
perts in the relevant field “ordinarily relied” on hearsay in
reaching their opinions. Id. at 1293.
Here, the district court concluded that the source code
printout could not be admitted under Rule 703 because it
was not authenticated and, as a result, Wi-LAN was at-
tempting to use Rule 703 as a “‘backdoor’ to allow the ad-
mission into evidence of otherwise inadmissible
declarations and other materials simply because they
might assist the jury’s evaluation of an expert’s opinions.”
J.A. 31. We agree. Wi-LAN attempts to do exactly what is
impermissible under Rule 703 by using its expert as a sub-
stitute for a fact witness to circumvent the rules of evidence
to admit otherwise inadmissible evidence.
As to the second question (the admissibility of the ex-
pert’s testimony as to infringement), under Rule 703,
“[d]ata relied on by the expert ‘need not be admissible for
the opinion to be admitted’ if experts in the field would rea-
sonably rely on such data.” Power Integrations, Inc. v.
Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348, 1373
5 See also United States v. Smith, 869 F.2d 348, 355
(7th Cir. 1989) (“It is, of course, true that an expert witness
may not simply summarize the out-of-court statements of
others as his testimony.”); United States v. Lawson, 653
F.2d 299, 302 (7th Cir. 1981) (“The Government could not,
for example, simply produce a witness who did nothing but
summarize out-of-court statements made by others.”).
Case: 20-1041 Document: 73 Page: 16 Filed: 04/06/2021

-- 16 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 17
(Fed. Cir. 2013) (quoting Fed. R. Evid. 703). “[I]t is the
judge who makes the determination of reasonable reliance,
and . . . for the judge to make the factual determination un-
der Rule 104(a) that an expert is basing his or her opinion
on a type of data reasonably relied upon by experts, the
judge must conduct an independent evaluation into reason-
ableness.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,
748 (3d Cir. 1994). The burden to establish reasonable re-
liance is on the proponent of challenged expert testimony.
See id. at 743–44, 747–48.
Wi-LAN argues that experts typically rely on material,
like source code, in reaching opinions about infringement.
That is obviously correct. But Wi-LAN has not made a
showing that source code experts reasonably rely on unau-
thenticated source code printouts.
In support of its position, Wi-LAN cites Factory Mutual
Insurance Co. v. Alon USA L.P., contending that the case
stands for the proposition that experts can reasonably rely
on inadmissible evidence (out-of-court statements as to
property value) to reach their conclusions as appraisers.
There, the Fifth Circuit permitted the testimony “[i]n light
of the deferential standard on appeal” because the expert
“clearly state[d] that the sort of information relied upon
here—the opinions of others—is the sort of information
reasonably relied upon by appraisers.” 705 F.3d at 525.
Wi-LAN points to no similar testimony by its expert here.
Wi-LAN’s conclusory statement that “the declarations
and source code evidence are the type of information that
an expert ‘would reasonably rely on . . . in forming an opin-
ion’ under FRE 703,” J.A. 15,454, is not sufficient. See
Schuchardt v. President of the United States, 802 F. App’x
69, 76 (3d Cir. 2020) (holding that simply asserting that
certain “documents are the ‘type of data that experts in the
intelligence community would typically and reasonably
rely upon’” “provided no basis for the Court to conduct an
Case: 20-1041 Document: 73 Page: 17 Filed: 04/06/2021

-- 17 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 18
independent evaluation into reasonableness” under Rule
703).
The district court did not abuse its discretion in reject-
ing Wi-LAN’s theory under Federal Rule of Evidence 703.6
D
In light of these admissibility issues, Wi-LAN’s
fallback position is that the district court should have
granted it additional time to obtain an admissible version
of the source code. We disagree. Wi-LAN had ample time
to obtain the source code and to find custodial witnesses to
authenticate the source code over the course of discovery
but failed to do so.
Wi-LAN had been on notice since early 2016 that it was
going to need the system-on-chip source code from third
parties to prove its direct infringement case. Throughout
the litigation, Wi-LAN repeatedly requested extensions of
time to obtain the source code from the third-party manu-
facturers. Ultimately, however, Wi-LAN only procured a
single printout version of the source code with declarations
after suing the third-party manufacturers.
Wi-LAN, as the district court found, “had ample time
and opportunities over years of litigation to obtain evidence
of infringement from the [system-on-chip] manufacturers”
but failed to do so. J.A. 32. Given this record, the district
court did not abuse its discretion in denying Wi-LAN an
additional opportunity to obtain an admissible form of the
source code.
6 We have reviewed Wi-LAN’s other arguments con-
cerning the admissibility of the source code printout and
declarations and find them to be without merit.
Case: 20-1041 Document: 73 Page: 18 Filed: 04/06/2021

-- 18 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 19
II
With respect to the ’250 patent, Wi-LAN challenges the
district court’s construction of two claim limitations:
(1) “output multimedia data stream” and (2) “a multimedia
processor, coupled to the data rate analyzer.” We review a
district court’s ultimate claim construction de novo where,
as here, there is no extrinsic evidence that bears on the
claim construction. Allegan Sales, LLC v. Sandoz, Inc., 935
F.3d 1370, 1373 (Fed. Cir. 2019).
The two limitations at issue appear in each of the as-
serted claims. Claim 1, the one asserted independent claim
on which the other two asserted claims depend, provides:
1. In a system for combining input multimedia data
streams to form an output multimedia data stream,
an apparatus for adjusting rates of the input mul-
timedia data streams comprising:
a data rate analyzer, coupled to the output multi-
media data stream, for determining the data rate
of the output multimedia data stream; and
a multimedia processor, coupled to the data rate
analyzer, for comparing the determined output
multimedia data stream data rate to a target out-
put data stream data rate, and generating rate con-
trol signals for adjusting the data rates of the input
multimedia data streams responsive to the com-
parison.
’250 patent, col. 9 ll. 28–41 (emphases added).
The district court construed “output multimedia data
stream” to mean a “combined audio and video stream that
are output from the system.” J.A. 68. Wi-LAN argues that
“the limitation imposed by the court’s construction . . . —
that it must be ‘output from the system’—is not supported
by any intrinsic evidence.” Appellant’s Br. 61. In
Case: 20-1041 Document: 73 Page: 19 Filed: 04/06/2021

-- 19 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 20
Wi-LAN’s view, the district court’s construction improperly
limits the claims because the plain meaning of the term “is
not restricted to any device or system.” Id. at 61–62. We
disagree.
The ’250 patent’s specification explains that the
“claimed input multimedia data streams” are combined
into a single output data stream within the claimed “inte-
grated multimedia encoding system” and that that system
transmits the data stream to other components of the
larger computer system. E.g., ’250 patent, col. 3, ll. 14–19
(“The output of the integrated multimedia encoding system
120 is transmitted to a communications device 112 for
transporting the encoded and multiplexed data or a storage
medium 116 for storage of the program or transport stream
data, or a decoder for decoding the data for playback.” (em-
phases added)); id. col. 4 ll. 14–17 (“The combined stream
data 224 is stored back into the unified memory module
204. Bus 122 is used to access the combined stream data
224 for transmission to other components of the system
100.” (emphasis added)).
The ’250 patent’s description of its figures adds further
support for the district court’s construction. For example,
the specification explains that, in Figure 2, which “illus-
trates the [claimed] integrated multimedia encoding sys-
tem 120,” id. col. 3 ll. 23–24, “the combined stream data
224 for transmission to other components of the system
100.” Id. col. 4 ll. 15–17. Similarly, the specification ex-
plains that, as illustrated in Figure 1, “[t]he output of the
integrated multimedia encoding system 120 is transmitted
to a communications device 112 for transporting the en-
coded and multiplexed data or a store medium 116 for stor-
age of the program or transport stream data, or a decoder
for decoding the data playback.” Id. col. 3 ll. 14–19. The
specification also describes Figure 7 as showing “the data
224 . . . temporarily [being] written back to memory 204,
for later transfer to the communications device 112, or
Case: 20-1041 Document: 73 Page: 20 Filed: 04/06/2021

-- 20 of 21 --

WI- LAN INC. v. SHARP ELECTRONICS CORPORATION 21
other recipient of the Program or Transport Stream 224.”
Id. col. 6 ll. 23–26 (emphasis added). In each of these ex-
amples, the output multimedia data stream is being output
from the integrated multimedia encoding system. The dis-
trict court’s construction of “output multimedia data
stream” as a “combined audio and video stream that are
output from the system” was correct.
Next, we address the construction of “a multimedia
processor, coupled to the data rate analyzer.” The district
court construed this limitation to mean “a multimedia pro-
cessor connected to the data rate analyzer, where the mul-
timedia processor is separate from, and not a sub-
component of, the data rate analyzer.” J.A. 70. The district
court’s construction was based on the patent’s consistent
use of “coupled” “to refer to components that are not sub-
components of each other” and “in” “to refer to components
that could be sub-components of each other.” J.A. 71.
Wi-LAN asserts that the district court “incorrectly limited
the plain meaning of the term ‘couple’—i.e., ‘connected’—
by further requiring ‘the multimedia processor [to be] sep-
arate from, and not a sub-component of, the data rate ana-
lyzer.’” Appellant’s Br. 63 (quoting J.A. 70). Further,
Wi-LAN contends that the district court “improperly ex-
tracted a limitation from the specification based on exem-
plary embodiments without identifying evidence that the
patentee intended the claims to be so limited, let alone ev-
idence that would meet the strict standards for clear disa-
vowal of claim scope.” Appellant’s Br. 64 (quoting J.A.
70–71). We reject Wi-LAN’s arguments and conclude that
the district court’s construction of this limitation was cor-
rect.
CONCLUSION
For the reasons stated above, the district court’s judg-
ment is affirmed.
AFFIRMED
Case: 20-1041 Document: 73 Page: 21 Filed: 04/06/2021

-- 21 of 21 --