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NCR Corp. has a "tough burden" on its shoulders if it wants to prove that the evidence a jury relied on to deliver a $13 million jury verdict against the company for infringing two payment processing patents was not substantial enough, a Federal Circuit judge said Tuesday.

U.S. Circuit Judge Kara Farnandez Stoll is the one who delivered that message during oral arguments Tuesday morning after hearing NCR's argument that the jury verdict was flawed because CloudofChange LLC's expert didn't add anything substantive in his rebuttal of NCR's evidence against infringement.

"It's not enough to go to the jury when all the plaintiff's expert says is 'I disagree,'" NCR's lawyer told the panel. "That is not the kind of dispute that is properly put to a jury because there's no substance behind the opposing expert that says 'I disagree' — they have to give reasons, and the court has repeatedly said conclusory statements are not substantial evidence."

U.S. Circuit Judge Timothy B. Dyk wondered whether the panel would need to reach the company's invalidity arguments if it sided with NCR on the matter of infringement. NCR assured the judge that the court would not need to.

But Judge Stoll spotted a problem with that position — the counterclaim NCR had filed against CloudofChange and that may or may not still be pending.

"Are you willing to drop that right now if we find there's no infringement?" Judge Stoll asked. "Because under Cardinal Chemical, we as a court have to resolve issues of validity if there's a counterclaim."

NCR's lawyer, however, said, "if the court were to find in our favor on the basis of infringement, we would be content with winning this case on that basis, assuming it's a reversal and not a remand."

That might work in the company's favor, because Judge Stoll said she thought there "might be an error" in the lower court's decision denying a new trial because it appeared to her that he was melding two different cases together but not applying them correctly.

Specifically, the court was talking about Centillion Data Systems LLC v. Qwest Communications International Inc., where the Federal Circuit ruled that the word "use" in patent infringement law means that a party must either practice every element of the patent or control and direct the actions of another party who does.

"Because he's looking at one component of the system — internet access — and even if it's true NCR directed its customers to perform, maybe maintaining internet access isn't enough," Judge Stoll said. "It has to be that you would under Centillion direct and control beneficial use of the entire system."

The Texas federal jury handed down the $13 million verdict in 2021 after finding that Atlanta-based NCR had infringed a pair of patents that cover point-of-sale technology and belonged to patent holding company CloudofChange. The jury found that NCR had infringed "every single claim" of the two patents and kiboshed the company's invalidity argument at the same time.

U.S. District Judge Alan Albright oversaw the case and is the one who, a year later, refused to overturn the jury verdict based on the argument that the jury was given incorrect instructions, resulting in the current appeal.

"When the instruction is read as a whole, it instructs the jury that to find infringement, the jury must analyze each and every element, or requirement, of a claim, and that use follows the same analysis," Judge Albright said at the time. "NCR's argument simply does not reflect the language of the jury instructions as to literal infringement."

U.S. Circuit Judges Jimmie V. Reyna, Kara Farnandez Stoll and Timothy B. Dyk sat on the panel for the Federal Circuit.

NCR is represented by Paul W. Hughes III of McDermott Will & Emery LLP.

CloudofChange is represented by Jerry R. Selinger of Patterson & Sheridan LLP.

The case is CloudofChange LLC v. NCR Corp., case number 23-1111, in the U.S. Court of Appeals for the Federal Circuit.