Lone Star Technological Innovations, LLC v. Asus Computer International

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LONE STAR TECHNOLOGICAL INNOVATIONS,
LLC,
Plaintiff-Appellee
v.
ASUS COMPUTER INTERNATIONAL,
Defendant
ASUSTEK COMPUTER, INC.,
Defendant-Appellant
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2022-1769, 2022-2261
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Appeals from the United States District Court for the
Eastern District of Texas in No. 6:19-cv-00059-RWS, Judge
Robert Schroeder, III.
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Decided: December 20, 2024
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JENNIFER ISHIMOTO, Banie & Ishimoto LLP, Palo Alto,
CA, argued for plaintiff-appellee.
VINAY VIJAY JOSHI, Amin Turocy & Watson, LLP, San
Jose, CA, argued for defendant-appellant. Also
represented by ANDREW TIMOTHY OLIVER.
Case: 22-1769 Document: 76 Page: 1 Filed: 12/20/2024

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LONE STAR TECHNOLOGICAL INNOVATIONS, LLC v.
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Before DYK, CHEN, and CUNNINGHAM, Circuit Judges.
CHEN, Circuit Judge.
Lone Star Technological Innovations, LLC, (Lone Star)
sued Asus Computer International and AsusTek Computer,
Inc., (collectively, Asus) in the Eastern District of Texas,
alleging Asus induced its customers to infringe certain
claims of U.S. Patent No. 6,724,435 (’435 patent). A jury
found the asserted claims were infringed and not proven to
be invalid and awarded damages of $825,000. The district
court ordered a new trial on damages, and the jury found
that Asus owed $659,106.40. The district court denied
Asus’s motions for judgment as a matter of law. Asus
appeals, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(1). We address each of Asus’s arguments in turn,
and none is persuasive. We therefore affirm.
First, Asus argues that Lone Star lacks standing
because, at trial, Lone Star failed to prove with written
evidence that it owned the ’435 patent. We interpret this
argument as a statutory standing argument. See 35 U.S.C.
§ 261; Lone Star Silicon Innovations LLC v. Nanya Tech.
Corp., 925 F.3d 1225, 1235 (Fed. Cir. 2019) (“whether a
party possesses all substantial rights in a patent does not
implicate [Article III] standing”).
Asus’s statutory standing argument is forfeited.
Standing was not raised as an issue in the Joint Pretrial
Order. “It goes without saying that a pre-trial order
controls the scope and course of trial; a claim or issue not
included in the order is waived, unless presented at trial
without objection.” Arsement v. Spinnaker Expl. Co., 400
F.3d 238, 245 (5th Cir. 2005).
To the extent Asus raises an Article III standing
challenge, that argument “cannot be waived or forfeited.”
Virginia House of Delegates v. Bethune-Hill, 587 U.S. 658,
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LONE STAR TECHNOLOGICAL INNOVATIONS, LLC v.
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662–63 (2019). Lone Star’s witness, Mr. Rice, testified
under oath at trial that Lone Star owns the ’435 patent.
Asus never controverted that testimony, so on the facts of
this case, Lone Star has satisfied Article III standing. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“And at
the final stage, those facts [to establish standing] (if
controverted) must be ‘supported adequately by the
evidence adduced at trial.’” (citation omitted)).
Second, Asus asks us to reduce or vacate the damages
award because there was no evidence about the extent of
use of the infringing feature. But Asus’s own expert
witness provided survey testimony that 16.2% of all survey
responders indicated that they practiced the claimed
method using Asus’s products. We thus reject Asus’s
argument.
Third, Asus contends that the damages award included
non-accused products. This argument is also meritless.
During discovery, Asus produced a spreadsheet in response
to interrogatories seeking sales information regarding
accused products. Both sides’ expert witnesses on damages
relied on that spreadsheet to calculate damages. More
specifically, both experts used the same royalty base (i.e.,
the number of infringing products), which came from
Asus’s spreadsheet. Thus, the experts agreed on the
number of accused products. These facts comport with the
district court’s determination that Lone Star did not
request damages for non-accused products and with Lone
Star’s expert’s testimony that all products on the
spreadsheet were infringed.
Fourth, Asus argues that the district court construed
the claim term “individual color” inconsistently within the
claims. The court, however, provided only one construction
for “individual color” to the jury, and that construction was
the construction that Asus proposed. Thus, the jury was
given only one, consistent construction for the claim term
“individual color.”
Case: 22-1769 Document: 76 Page: 3 Filed: 12/20/2024

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Asus raises another variant of its claim construction
argument: even though one claim construction was
provided to the jury, there was “a secret construction that
bound” the parties and their witnesses. Appellant’s Reply
Br. 37. It would be a misnomer to refer to this argument
as raising a claim construction issue because Asus agrees
that the construction provided to the jury “is correct.”
Appellant’s Br. 63. Rather, Asus appears to be challenging
the effect that the “secret construction” may have had on
the presentation of the evidence. But even if we accept that
a “secret construction” bound the parties, Asus has not
raised any meaningful argument showing how it was
harmed by the purported “secret construction.” Asserting,
without more, that the alleged error is “not harmless,
because it directly affects the infringement verdict” is
simply too skeletal of an argument. Appellant’s Br. 72.
Fifth, Asus argues that substantial evidence does not
support the jury’s finding of infringement. Asus challenges
only claim limitation 1(e). This argument is forfeited
because it was not raised in Asus’s Rule 50(b) brief before
the district court.
Last, Asus contends that substantial evidence does not
support the jury’s finding of induced infringement. “[W]e
have affirmed induced infringement verdicts based on
circumstantial evidence of inducement (e.g.,
advertisements, user manuals) directed to a class of direct
infringers (e.g., customers, end users) without requiring
hard proof that any individual third-party direct infringer
was actually persuaded to infringe by that material.”
Power Integrations, Inc. v. Fairchild Semiconductor Int’l,
Inc., 843 F.3d 1315, 1335 (Fed. Cir. 2016). Lone Star
adduced evidence of how Asus’s website and product
manuals instruct users how to perform the infringing
method. That evidence is sufficient to support the jury’s
finding.
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LONE STAR TECHNOLOGICAL INNOVATIONS, LLC v.
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We have considered Asus’s remaining arguments and
do not find them persuasive. For the foregoing reasons, we
affirm.
AFFIRMED
Case: 22-1769 Document: 76 Page: 5 Filed: 12/20/2024

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