       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

        CONTENTGUARD HOLDINGS, INC.,
               Plaintiff-Appellant

                           v.

   GOOGLE, INC., HTC AMERICA, INC., HTC
  CORPORATION, HUAWEI DEVICE USA, INC.,
HUAWEI TECHNOLOGIES CO., LTD., MOTOROLA
   MOBILITY LLC, SAMSUNG ELECTRONICS
 AMERICA, INC., SAMSUNG ELECTRONICS CO.,
                    LTD.,
          Defendants-Cross-Appellants
            ______________________

2016-2430, 2016-2431, 2016-2445, 2016-2446, 2016-2447,
                      2016-2448
               ______________________

    Appeals from the United States District Court for the
Eastern District of Texas in Nos. 2:14-cv-00061-JRG,
2:16-cv-00176-JRG, Judge J. Rodney Gilstrap.
                ______________________

                Decided: July 12, 2017
                ______________________

   DIRK D. THOMAS, McKool Smith, P.C., Washington,
DC, argued for plaintiff-appellant. Also represented by
ROBERT A. COTE, RADU A. LELUTIU, New York, NY.
2              CONTENTGUARD HOLDINGS, INC.   v. GOOGLE, INC.



    ROBERT UNIKEL, Arnold & Porter Kaye Scholer LLP,
Chicago, IL, argued for all defendants-cross-appellants.
Defendants-cross-appellants Google, Inc., Motorola Mobil-
ity LLC also represented by DEANNA KEYSOR; MICHAEL J.
MALECEK, PETER E. ROOT, Palo Alto, CA. Defendant-cross
appellant Google, Inc. also represented by DAN L.
BAGATELL, Perkins Coie LLP, Hanover, NH.

    TERRY DUANE GARNETT, Loeb & Loeb LLP, Los Ange-
les, CA, for defendants-cross-appellants HTC America,
Inc., HTC Corporation.

    SCOTT F. PARTRIDGE, Baker Botts, LLP, Houston, TX,
for defendants-cross-appellants Huawei Device USA, Inc.,
Huawei Technologies Co., Ltd. Also represented by
BRADLEY BOWLING, MICHELLE JACOBSON EBER.

    NEIL P. SIROTA, Baker Botts, LLP, New York, NY, for
defendants-cross-appellants Samsung Electronics Ameri-
ca, Inc., Samsung Electronics Co., Ltd. Also represented
by ROBERT LAWRENCE MAIER, JENNIFER COZEOLINO
TEMPESTA.
                 ______________________

    Before DYK, REYNA, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
    This appeal is related to ContentGuard Holdings, Inc.
v. Apple Inc. (Apple), also decided today. See Nos. 2016-
1916, 2016-2007, slip op. at 1–13 (Fed. Cir. July 12, 2017).
Appellant ContentGuard Holdings, Inc. (“ContentGuard”)
sued Cross-Appellants Google, Inc. et al (“Google”) for
patent infringement in the U.S. District Court for the
Eastern District of Texas (“District Court”). Relevant
here, ContentGuard alleged that Google infringed U.S.
Patent Nos. 6,963,859 (“the ’859 patent”), 7,823,072 (“the
’072 patent”), 8,370,956 (“the ’956 patent”), 8,393,007
(“the ’007 patent”), and 8,001,053 (“the ’053 patent”)
CONTENTGUARD HOLDINGS, INC.   v. GOOGLE, INC.              3



(collectively, “the Patents-in-Suit”), all of which relate to
digital rights management for computers and other
devices. 1 After claim construction and ruling on various
evidentiary motions, the District Court convened a jury
trial, and the jury determined that, inter alia, Google had
not infringed the Asserted Claims. Following the jury’s
verdict, the District Court entered a final judgment in
favor of Google. Both ContentGuard and Google filed
renewed motions for judgment as a matter of law
(“JMOL”) or, in the alternative, motions for a new trial,
on the grounds that the jury lacked sufficient evidentiary
support for its findings. The District Court denied the
parties’ Motions for JMOL or for a New Trial. See Con-
tentGuard Holdings, Inc. v. Google, Inc., No. 2:14-CV-61-
JRG, 2016 WL 3655603, at *1 (E.D. Tex. July 8, 2016).
    ContentGuard appeals the District Court’s claim con-
struction and denial of ContentGuard’s Motion for a New
Trial. Google conditionally cross-appeals. We affirm.
                        DISCUSSION
    In Apple, we affirmed the District Court’s construction
of the disputed term “usage rights” (“the usage right
limitation”) and entry of final judgment of noninfringe-
ment. See Nos. 2016-1916, 2016-2007, slip op. at 8, 13.



    1   ContentGuard originally alleged that Google in-
fringed the Patents-in-Suit generally, J.A. 454−63; how-
ever, before trial, it narrowed its infringement arguments
to assert only claim 1 of the ’859 patent, claim 1 of the
’072 patent, claim 7 of the ’956 patent, claim 6 of the ’007
patent, and claim 1 of the ’053 patent (collectively, “the
Asserted Claims”), J.A. 1, 7879. Because the parties’
arguments apply with equal force to each of the Patents-
in-Suit, see generally Appellant’s Br; Cross-Appellants’
Br., we refer to the ’859 patent when discussing the
Patents-in-Suit.
4               CONTENTGUARD HOLDINGS, INC.   v. GOOGLE, INC.



Because ContentGuard conceded that those holdings
control here, Oral Arg. at 0:54–1:16, http://oralarguments.
cafc.uscourts.gov/default.aspx?fl=2016-2430.mp3, we need
not address ContentGuard’s claim construction or in-
fringement arguments. Nor do we need to address
Google’s conditional cross-appeal. See Cross-Appellants’
Br. 47 n.4 (“If this [c]ourt affirms the judgment of nonin-
fringement, [Google is] willing to withdraw [its] cross-
appeal.”). Therefore, the sole remaining issue on appeal
is whether “[a] new trial is . . . warranted because the
District Court allowed [Google], over ContentGuard’s
objection, to mount an improper ‘practicing the prior
art’/prosecution disclaimer defense.” Appellant’s Br. 38
(footnote omitted). After articulating the relevant stand-
ards of review, we turn to ContentGuard’s argument.
                   I. Standards of Review
    We “review[] decisions on . . . motions for a new trial[]
and evidentiary rulings under the law of the regional
circuit,” here the Fifth Circuit. SSL Servs., LLC v. Citrix
Sys., Inc., 769 F.3d 1073, 1082 (Fed. Cir. 2014) (citation
omitted). The Fifth Circuit reviews denials of motions for
a new trial for abuse of discretion, and “there is no such
abuse of discretion unless there is a complete absence of
evidence to support the verdict.” Industrias Magromer
Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912,
924 (5th Cir. 2002) (internal quotation marks, alterations,
and citation omitted). The Fifth Circuit also reviews
evidentiary rulings for abuse of discretion and will affirm
the ruling unless it “had a substantial effect on the out-
come of the trial.” U.S. Bank Nat’l Ass’n v. Verizon
Commc’ns, Inc., 761 F.3d 409, 430 (5th Cir. 2014).
    II. The District Court Did Not Abuse Its Discretion in
       Denying ContentGuard’s Motion for a New Trial
    ContentGuard argues that the District Court improp-
erly “allow[ed Google] to argue that the jury should find
non-infringement if it concludes that [a prior art refer-
CONTENTGUARD HOLDINGS, INC.    v. GOOGLE, INC.              5



ence] teaches a system ‘like the Google system,’” because
“[t]his [c]ourt has repeatedly held that there is no practic-
ing the prior art defense to literal infringement.” Appel-
lant’s Br. 41 (internal quotation marks and citation
omitted). The District Court found that Google had not
presented a practicing the prior art defense but rather
“properly distinguished their system from the systems
described in the [P]atents-in-[S]uit.” ContentGuard, 2016
WL 3655603, at *5. We hold that the District Court did
not abuse its discretion.
    The “practicing the prior art defense typically refers
to the situation where an accused infringer compares the
accused infringing behavior to the prior art in an attempt
to prove that its conduct is . . . noninfringing . . . because
the accused conduct is simply practicing the prior art.”
Cordance Corp. v. Amazon.com, Inc., 658 F.3d 1330, 1337
(Fed. Cir. 2011) (internal quotation marks omitted). We
have made it “unequivocally clear . . . that there is no
practicing the prior art defense to literal infringement.”
Tate Access Floors, Inc. v. Interface Architectural Res.,
Inc., 279 F.3d 1357, 1365 (Fed. Cir. 2002) (internal quota-
tion marks omitted). Therefore, parties are prohibited
from arguing that a plaintiff “must prove . . . that . . . the
accused devices embody all the limitations in the asserted
claims, and in addition, [that the] accused devices must
not be an adoption of the combined teachings of the prior
art.” Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d
1575, 1583 (Fed. Cir. 1995).
     As an initial matter, ContentGuard concedes that it
did not object on the grounds that Google raised an im-
proper practicing the prior art defense before the District
Court. Oral Arg. at 6:28–57, http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2016-2430.mp3.       Instead,
ContentGuard objected on the grounds of prosecution
disclaimer. See J.A. 10704–07. Because ContentGuard
failed to identify the proper grounds for its objection
below, ContentGuard failed to preserve its claim of error.
6                CONTENTGUARD HOLDINGS, INC.       v. GOOGLE, INC.



See Fed. R. Evid. 103(a) (“A party may claim error in a
ruling to . . . exclude evidence only if . . . (1) . . . a party, on
the record . . . (B) states the specific ground, unless it was
apparent from the context . . . .” (emphasis added)).
Therefore, these arguments are waived. See Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (“It is the general
rule . . . that a federal appellate court does not consider an
issue not passed upon below.”). 2
    Moreover, the District Court “properly and specifically
instructed the jury that when answering the question of
infringement, they were only to compare the accused
products to the [Asserted C]laims, and were never to
compare the accused products to the prior art.” Content-
Guard, 2016 WL 3655603, at *5; see J.A. 12603. Con-
tentGuard has not identified any evidence indicating that
the jury misunderstood this explicit instruction from the
District Court. See generally Appellant’s Br. Therefore,
the District Court did not abuse its discretion in finding
that Google had not asserted a practicing the prior art
defense. See Cordance, 658 F.3d at 1337 (explaining that
the defendant had not improperly presented a practicing
the prior art defense by discussing the prior art where the
defendant’s experts presented sufficient evidence as to
each disputed limitation).




    2   Although ContentGuard fashions its arguments to
this court as objections to “practicing the prior
art/prosecution disclaimer,” see, e.g., Appellant’s Br. 38,
41, 43 (internal quotation marks omitted), ContentGuard
provides only bare assertions of prosecution disclaimer
that we will not review, see SmithKline Beecham Corp. v.
Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (declin-
ing to consider undeveloped arguments).
CONTENTGUARD HOLDINGS, INC.   v. GOOGLE, INC.          7



                      CONCLUSION
    We have considered the parties’ remaining arguments
concerning infringement and find them unpersuasive. We
do not reach the patent-eligibility and invalidity issues
raised in Google’s conditional cross-appeal. Accordingly,
the Final Judgment of the U.S. District Court for the
Eastern District of Texas is
                      AFFIRMED
                         COSTS
   Each party shall bear its own costs.
