Case: 21-1937 Document: 73 Page: 1 Filed: 07/28/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

VOCALIFE LLC, Plaintiff-Cross-Appellant

v.

AMAZON.COM, INC., AMAZON.COM LLC, Defendants-Appellants ______________________

2021-1937, 2021-1984 ______________________

Appeals from the United States District Court for the Eastern District of Texas in No. 2:19-cv-00123-JRG, Chief Judge J. Rodney Gilstrap. ______________________

Decided: July 28, 2022 ______________________

ALFRED ROSS FABRICANT, Fabricant LLP, Rye, NY, ar- gued for plaintiff-cross-appellant. Also represented by ENRIQUE WILLIAM ITURRALDE, PETER LAMBRIANAKOS, VINCENT J. RUBINO, III.

JOSEPH R. RE, Knobbe, Martens, Olson & Bear, LLP, Irvine, CA, argued for defendants-appellants. Also repre- sented by ALAN GRAYSON LAQUER; COLIN B. HEIDEMAN, Se- attle, WA. ______________________ Case: 21-1937 Document: 73 Page: 2 Filed: 07/28/2022

2 VOCALIFE LLC v. AMAZON.COM, INC.

Before MOORE, Chief Judge, PROST and HUGHES, Circuit Judges. HUGHES, Circuit Judge. Defendants-Appellants Amazon.com, Inc. and Ama- zon.com LLC appeal from the United States District Court for the Eastern District of Texas’ denial of Amazon’s motion for judgment as a matter of law on the issue of noninfringe- ment. Plaintiff-Cross-Appellant Vocalife LLC cross-ap- peals two of the district court’s summary judgment grants. Because there is no substantial evidence to support in- fringement of the “plurality of configurations” limitation, we reverse the district court’s denial of Amazon’s motion for judgment as a matter of law, vacate the jury verdict, and dismiss Vocalife’s cross-appeal as moot. I Vocalife owns U.S. Patent No. RE 47,049, which is di- rected to methods and systems for “enhancing acoustics of a target sound signal received from a target sound source, while suppressing ambient noise signals.” ’049 patent, 2:6–8. Claim 1 of the ’049 patent covers one such method and recites a number of steps, including “providing a mi- crophone array system comprising an array of sound sen- sors positioned in a linear, circular, or other configuration” and “determining a delay . . . wherein said determination of said delay enables beamforming for said array of sound sensors in a plurality of configurations.” 1 Id., 21:27–22:3 (claim 1). We refer to the latter step as the “plurality of con- figurations” limitation.

1 “Beamforming” refers to a signal processing tech- nique by which the disclosed microphone array can focus on a sound signal coming from a particular direction in- stead of sound signals from other directions. See ’049 pa- tent, 5:65–6:2, 6:17–23. Case: 21-1937 Document: 73 Page: 3 Filed: 07/28/2022

VOCALIFE LLC v. AMAZON.COM, INC. 3

Vocalife filed a patent infringement suit against Ama- zon, accusing certain Amazon Echo products of infringing the ’049 patent. At the summary judgment stage, the dis- trict court granted summary judgment that, among other things, absolute intervening rights under 35 U.S.C. § 252 apply to certain Echo products and Vocalife was not enti- tled to damages for pre-suit induced infringement. The case proceeded to trial. Amazon moved for judgment as a matter of law (JMOL) of noninfringement after the close of evidence. The district court denied JMOL of no induced in- fringement but granted JMOL of no direct or contributory infringement by Amazon and no infringement under the doctrine of equivalents. Thus, the only infringement issue for the jury to decide was whether Amazon induced users of the Echo to literally infringe the patent. After the six-day trial concluded, the jury returned a verdict finding that Amazon did. Amazon renewed its motion for JMOL of no induced infringement, which the district court again de- nied. Both parties appeal. Amazon appeals the denial of its JMOL motion. Vocalife cross-appeals the two summary judgment grants. We have jurisdiction under 28 U.S.C. § 1295(a)(1). II We review JMOL denials under the law of the regional circuit, here the Fifth Circuit, which reviews such denials de novo. Raytheon Co. v. Indigo Sys. Corp., 895 F.3d 1333, 1338 (Fed. Cir. 2018). JMOL “is appropriate only where ‘the facts and inferences point so strongly and overwhelm- ingly in favor of one party that the court concludes that reasonable jurors could not arrive at a contrary verdict.’” Id. (quoting Orion IP, LLC v. Hyundai Motor Am., 605 F.3d 967, 973 (Fed. Cir. 2010) (applying Fifth Circuit law)). Thus, “[w]e affirm a district court’s denial of [JMOL] when there was substantial evidence to support the jury’s ver- dict.” Id. (citing Power-One, Inc. v. Artesyn Techs., Inc., Case: 21-1937 Document: 73 Page: 4 Filed: 07/28/2022

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599 F.3d 1343, 1350 (Fed. Cir. 2010) (applying Fifth Circuit law)). III Vocalife contends it provided substantial evidence that the Echo infringes the “plurality of configurations” limita- tion. At trial, Vocalife’s expert, Joseph McAlexander, testi- fied that the Echo determines a delay as part of its beamforming process using inputs from the incoming tar- get sound signal in conjunction with certain infor- mation—beam coefficients—stored on the device. See, e.g., Appx6326–27 at 617:19–618:3; Appx6340–42 at 631:2–633:19; Appx6427–28 at 718:10–719:22; Appx6429 at 720:10–17. As Mr. McAlexander testified, Amazon cal- culated the pre-loaded beam coefficients via computer sim- ulation during development of the Echo and pre-loaded those coefficients onto the Echo devices during manufac- turing. See, e.g., Appx6326–27 at 617:3–618:3; Appx6390–91 at 681:24–682:7. Mr. McAlexander further testified that the Echo’s delay determination enables beamforming for a plurality of configurations because the software code running on the Echo can be utilized across different Echo products with different microphone array configurations. See, e.g., Appx6297–98 at 588:21–589:14; Appx6339–40 at 630:20–631:1. None of this testimony, however, supports the conclu- sion that the Echo products infringe the ’049 patent. The testimony does not show that the delay determination oc- curring on a given Echo device enables beamforming for a plurality of configurations, as claim 1 requires. If anything, Mr. McAlexander’s testimony suggests that this determi- nation enables beamforming for only the specific micro- phone array configuration on that specific device. 2

2 At oral argument, Vocalife hypothesized that “there could be” multiple configurations on a given Echo Case: 21-1937 Document: 73 Page: 5 Filed: 07/28/2022

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Mr. McAlexander repeatedly described the pre-loaded beam coefficients as being specific to a “particular” micro- phone array. See, e.g., Appx6325–26 at 616:14–617:2 (Am- azon’s computer simulation is “a construct by which they take the instantiation of a particular microphone array or- ganized in a certain fashion, arranged in a certain archi- tecture” to create beam coefficients “that are associated with [ ] that particular kind of a structure.”); Appx6326 at 617:7–18 (Amazon “take[s] a specific designed architecture with a physical arrangement of the microphones” to pro- vide the beam coefficients, which “go[] into the [ ] initial construct of how the beams will be formed once they are instantiated in the accused device.”); Appx6327 at 618:6–11 (The beam coefficients “include the understand- ing of how that arrangement of the architecture is,” as “you have to define the microphone array first.”); Appx6437 at 728:8–14 (Amazon determines the beam coefficients “based on an architectural arrangement or a layout of the sound sensors” and “that calculation is already built into the co- efficients that are then programmed into this device.”). While it is undisputed that Amazon pre-loads certain beam coefficients onto each Echo device, Vocalife provides no ev- idence showing that the coefficients loaded onto a given Echo device enable beamforming for a variety of micro- phone configurations, as opposed to only the configuration

device “in the situations where not all of the microphones are operating or certain microphones aren’t receiving the sound or performing as designed.” Oral Argument at 20:00–20:09, https://oralarguments.cafc.uscourts.gov/de- fault.aspx?fl=21-1937_07072022.mp3. This contention, which appears nowhere in Vocalife’s briefing, comes too late. See Henry v. Dep’t of Justice, 157 F.3d 863, 865 (Fed. Cir. 1998) (declining to consider argument raised for the first time at oral argument). In any event, Vocalife cites no evidence—nor have we found any—showing that these hy- pothetical configurations exist. Case: 21-1937 Document: 73 Page: 6 Filed: 07/28/2022

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of that particular device. Mr. McAlexander’s conclusory, unsupported testimony that the Echo meets the “plurality of configurations” limitation, see Appx6338 at 629:2–14, is otherwise insufficient to support the jury’s infringement verdict, see, e.g., Yoon Ja Kim v. ConAgra Foods, Inc., 465 F.3d 1312, 1320 (Fed. Cir. 2006) (affirming JMOL of noninfringement where patentee’s expert offered only con- clusory, unsupported testimony). Because there is no substantial evidence showing that any delay determination occurring on a given Echo device enables beamforming for a microphone array “in a plurality of configurations,” we conclude that Vocalife failed as a matter of law to prove that the Echo infringes claim 1 of the ’049 patent. We reverse the district court’s denial of JMOL of no induced infringement and vacate the jury ver- dict. This moots Vocalife’s cross-appeal, and we accordingly dismiss as moot Appeal No. 2021-1984. REVERSED IN PART, DISMISSED IN PART Costs to Defendants-Appellants.