Cloudofchange, LLC v. Ncr Corporation

Case: 23-1111    Document: 78     Page: 1   Filed: 12/18/2024




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                CLOUDOFCHANGE, LLC,
                   Plaintiff-Appellee

                             v.

                  NCR CORPORATION,
                   Defendant-Appellant
                  ______________________

                        2023-1111
                  ______________________

    Appeal from the United States District Court for the
 Western District of Texas in No. 6:19-cv-00513-ADA, Judge
 Alan D. Albright.
                   ______________________

                Decided: December 18, 2024
                  ______________________

    JERRY ROBIN SELINGER, Patterson & Sheridan LLP,
 Dallas, TX, argued for plaintiff-appellee. Also represented
 by KYRIE CAMERON, BARDEN TODD PATTERSON, JOHN
 ALLEN YATES, Houston, TX.

     PAUL WHITFIELD HUGHES, III, McDermott Will & Em-
 ery LLP, Washington, DC, argued for defendant-appellant.
 Also represented by ADAM WILLIAM BURROWBRIDGE;
 KATHERINE M. PAPPAS, Irvine, CA.
                ______________________

      Before DYK, REYNA, and STOLL, Circuit Judges.
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 2                  CLOUDOFCHANGE, LLC v. NCR CORPORATION




 STOLL, Circuit Judge.
      This case asks us to consider again whether to attrib-
 ute a customer’s use of a claimed system to the manufac-
 turer of only part of the system.            Appellant NCR
 Corporation (“NCR”) appeals the United States District
 Court for the Western District of Texas’s denial of judg-
 ment as a matter of law (“JMOL”) of no direct infringe-
 ment. NCR asserts it could not directly infringe the claims
 of U.S. Patent Nos. 9,400,640 and 10,083,012 as a matter
 of law because NCR itself does not use the claimed system;
 rather, its merchants do. The district court found that the
 merchants’ use of the system could be attributed to NCR
 under our precedent involving divided infringement and
 principles of vicarious liability. For the following reasons,
 we reverse.
                         BACKGROUND
                               I
     CloudofChange, LLC (“CloudofChange”) sued NCR, al-
 leging infringement of the ’640 and ’012 patents (collec-
 tively, the “Asserted Patents”). The Asserted Patents
 share a specification and a priority date of February 5,
 2008. The shared specification discloses an online web-
 based point-of-sale-builder system that a non-expert busi-
 ness operator can use to assemble a point of sale (“POS”)
 system for managing their business operations. ’640 pa-
 tent, col. 1 ll. 10–18. The specification explains that the
 conventional process of assembling a POS system required
 manually coding information, such as menu selections, and
 defining the position and operation of touch screen keys
 and their database correspondence. Id. at col. 1 ll. 20–32.
 According to the specification, this process was time-con-
 suming and prone to mistakes, only specially trained indi-
 viduals could build or change POS screens, and store
 owners tended to retain out-of-date POS screens to avoid
 the editing process. Id. at col. 1 ll. 32–37.
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 CLOUDOFCHANGE, LLC v. NCR CORPORATION                       3



     The disclosed object of the Asserted Patents is “to pro-
 vide an online, web-based point of sale builder system,” id.
 at col. 2 ll. 3–4, that a non-expert business operator can use
 to assemble a POS system, which she could then use to
 manage her business.
     Figure 3 of the Asserted Patents, reproduced below, il-
 lustrates an embodiment of the web-based POS system. Id.
 Fig. 3; col. 3 ll. 38–49. As shown, “[t]here are N POS ter-
 minals (POS 1, POS 2, . . . POS N) in ‘Store’ 31 and in
 ‘Store’ 32.” Id. at col. 3 ll. 37–40. “Each POS includes per-
 sonal computer hardware and software,” and “[e]ach POS
 operates with a hardware/software connection 35 to the In-
 ternet.” Id. at col. 3 ll. 40–41, 43–44. Connection 35 allows
 each POS to communicate via Hypertext Transfer Protocol
 (HTTP) with Back-Office (“BO”) software implemented on
 web servers 36. Id. at col. 4 ll. 16–19. “In addition, the BO
 software and data can be viewed from any store employee
 at any PC 33 who has Internet access 37 and a password.”
 Id. at col. 4 ll. 20–22.




 Id. Fig. 3.
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 4                  CLOUDOFCHANGE, LLC v. NCR CORPORATION




     Claim 1 of the ’640 patent is illustrative of the asserted
 claims and recites:
     1. A web-based point of sale (POS) builder system
     comprising:
     one or more point of sale terminals, that display
     POS screens,
     an internet connection from said one or more point
     of sale terminals to a web server,
     one or more local or remote POS workstations, and
     point of sale builder software that runs on said web
     server, wherein said local or remote workstations
     are utilized to build or edit said POS terminals in
     real time, from anywhere in the world and over the
     worldwide web,
     wherein said web servers are provided as a vendor
     subscription service wherein web server software
     resides and is hosted on said vendor’s remote serv-
     ers and wherein subscriber company’s POS termi-
     nals access and repeatedly interact with said web
     server software from said vendor’s remote servers,
     in order to perform the subscriber’s desired termi-
     nal function, over a network, wherein the network
     comprises the Internet.
 Id. at col. 6 ll. 11–28 (emphasis added). The claims ex-
 pressly require two entities: a vendor and a subscriber.
 The claims require the vendor’s remote servers to host the
 web server software while subscribers possess the POS ter-
 minals that access the web server software.
                               II
     CloudofChange accused NCR’s product, NCR Silver, of
 infringing several claims of the Asserted Patents. NCR Sil-
 ver is a web-based POS solution designed for small and in-
 dependent business owners.            NCR Silver allows
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 CLOUDOFCHANGE, LLC v. NCR CORPORATION                     5



 merchants 1 to edit POS menus, perform transactions, and
 build their own POS screens.
     Relevant here, a merchant’s use of NCR Silver requires
 application software, POS hardware—such as a tablet or
 personal computer—and an Internet connection to NCR’s
 backend servers. It is undisputed that NCR does not pro-
 vide all the necessary components of the accused system.
 Specifically, (1) NCR contractually makes users responsi-
 ble for supplying and maintaining an Internet connection,
 which is necessary to use NCR Silver; and (2) most users
 supply their own POS hardware. While most merchants
 supply the POS hardware, a small number of merchants
 obtain the hardware from NCR. Hardware products avail-
 able through NCR include tablets, display screens, pay-
 ment processors, and cash drawers. Merchants download
 NCR Silver software from an app store onto their POS
 hardware.
                             III
     In the district court, CloudofChange pursued a single
 theory of infringement: that NCR directly used the
 claimed system by putting it into beneficial use under this
 court’s Centillion precedent. Centillion Data Sys., LLC
 v. Qwest Commc’ns Int’l, Inc., 

631 F.3d 1279

 (Fed. Cir.
 2011). Specifically, CloudofChange asserted that NCR con-
 trols and benefits from each component recited in the
 claimed system and thus, under Centillion, uses the sys-
 tem. CloudofChange abandoned all other infringement
 theories, including induced infringement, contributory in-
 fringement, and direct infringement by importing, making,
 or selling the claimed system. The district court observed
 that CloudofChange’s “proof requirements are particularly



    1    NCR refers to its customers as merchants. Appel-
 lee’s Br. 10. This opinion refers to users, customers, and
 merchants interchangeably.
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 6                  CLOUDOFCHANGE, LLC v. NCR CORPORATION




 difficult” because CloudofChange “only asserts a direct in-
 fringement theory of ‘use’ against NCR” and “abandoned
 all other theories.” Cloudofchange, LLC v. NCR Corp.,
 No. W-19-cv-00513-ADA, 

2022 WL 15527756

, at *5
 (W.D. Tex. Oct. 27, 2022). Under CloudofChange’s theory
 “[i]t’s the defendant [NCR] that uses the Internet connec-
 tion as part of the system,” and thus has “control and ben-
 eficial use of the system per Centillion.” J.A. 8195 (Pretrial
 Conference Tr. 45:16–18).
     At trial, CloudofChange’s technical expert, Gregory
 Crouse, testified that a customer-merchant downloads the
 NCR Silver software from an app store onto a POS termi-
 nal such as a tablet. He explained that a merchant can use
 NCR Silver, for example, to add new categories and add or
 edit buttons on the merchant’s POS screens. He also testi-
 fied that using NCR Silver requires an Internet connection
 between the merchant’s POS terminal and NCR’s backend
 server. Mr. Crouse concluded that use of NCR Silver in-
 fringed claim 1 of the ’640 patent, but he did not discuss
 how that use could be attributed to NCR, as opposed to the
 merchants or users of NCR Silver.
      CloudofChange’s direct infringement theory turned on
 its argument that “NCR controls and benefits from its Sil-
 ver system, including the requirement that customers who
 use the system supply an internet connection and network
 access to do so.” J.A. 11059. In support of this argument,
 CloudofChange pointed to Mr. Crouse’s testimony that a
 merchant who purchases NCR Silver must supply their
 own Internet access to use NCR Silver. CloudofChange
 also introduced into evidence NCR Silver’s Merchant
 Agreement, which directs the merchant to “maintain Inter-
 net access at your own expense” to use the service.
 J.A. 15490. For its part, NCR did not dispute that its Mer-
 chant Agreement makes Internet access the merchant’s re-
 sponsibility; rather, NCR argued that this does not
 demonstrate control of the merchant’s use of NCR Silver.
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 CLOUDOFCHANGE, LLC v. NCR CORPORATION                        7



     On cross-examination, CloudofChange’s technical ex-
 pert, Mr. Crouse, agreed that it is NCR’s customer-mer-
 chants who put NCR Silver into service and benefit from
 using it. J.A. 9049 (Trial Tr. 469:6–25); J.A. 9051 (Trial
 Tr. 471:17–25). The following exchange from NCR’s cross-
 examination of Mr. Crouse is illustrative:
     Q. And so as part of the merchant agreement, NCR
     tells customers that they need to get their own In-
     ternet access, correct?
     A. Yes, sir.
     Q. Okay. And so it’s the consumers, the merchants
     that actually use NCR Silver, correct, in their retail
     operations?
     A. Yes, sir.
     Q. Okay. So you admit that a merchant who pur-
     chases the NCR Silver has to obtain their own In-
     ternet access, don’t you?
     A. Yes, sir.
     Q. Okay. You admit that the merchants put NCR
     Silver into service, don’t you?
     A. Yes, sir.
     ....
     Q. You admit that merchants benefit from the use
     of NCR Silver, don’t you?
     A. Yes, sir. I do.
 J.A. 9049 (Trial Tr. 469:6–25). Citing this testimony, NCR
 timely moved for JMOL under Federal Rule of Civil Proce-
 dure 50(a), arguing that no reasonable jury could find in-
 fringement.
     After a four-day trial, the jury found that NCR directly
 infringed all asserted claims, including claims 1, 3, 4, 5, 6,
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 8                   CLOUDOFCHANGE, LLC v. NCR CORPORATION




 11, 12, and 13 of the ’640 patent and claims 1–4 of the
 ’012 patent (collectively the “Asserted Claims”). The jury
 also found that NCR had not proven that the Asserted
 Claims were invalid. Finally, the jury found NCR’s in-
 fringement willful and awarded CloudofChange lump sum
 damages totaling $13.2 million.
      NCR then renewed its motion for JMOL under
 Rule 50(b) or, in the alternative, moved for a new trial un-
 der Rule 59. NCR’s renewed motion challenged the verdict
 for five principal reasons: (1) the jury was erroneously in-
 structed; (2) the district court erred by failing to interpret
 the claim term “builder”; (3) the Asserted Claims are inva-
 lid; (4) NCR does not use the claimed system (and thus
 does not infringe) as a matter of law; and (5) the jury’s
 award of damages under the entire market value rule was
 erroneous.
     Most relevant to this opinion, NCR argued it was enti-
 tled to JMOL of no infringement because CloudofChange
 did not offer substantial evidence that NCR (as opposed to
 its merchant customers) controls and benefits from every
 element of the claimed system as required by Centillion.
 Specifically, NCR argued that “[s]imilar to Qwest [the ac-
 cused infringer in Centillion], NCR does not infringe the
 asserted system claim because ‘the entire system is not
 used until a customer loads software on its personal com-
 puter and processes data.’” J.A. 10781 (quoting Centillion,
 

631 F.3d at 1287

). NCR pointed to CloudofChange’s ex-
 pert’s admission that NCR’s merchants, not NCR, put NCR
 Silver into service, control their use of NCR Silver, and
 benefit from the use of NCR Silver.
     The district court held that substantial evidence sup-
 ported the jury’s infringement findings and denied NCR’s
 JMOL motion. In so holding, the court acknowledged that
 NCR is liable for direct infringement for “use” only if it con-
 trols the system and obtains benefit from it. But the court
 explained that the “sticking point is whether
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 CLOUDOFCHANGE, LLC v. NCR CORPORATION                       9



 [CloudofChange] provided substantial evidence to support
 a theory of vicarious liability as to certain claim elements.”
 Cloudofchange, 

2022 WL 15527756

, at *5.
      The district court first held “that NCR, although it
 owns and operates the Back Office, does not put the ac-
 cused system into service because it does not itself control
 the network.” Id. at *7. Instead, the court concluded that
 NCR’s merchants were analogous to the accused infringer’s
 customers in Centillion because the merchants benefit
 from and put the system into service by initiating demand
 for service at the front-end. Accordingly, the district court
 held that NCR’s customers—not NCR—“put the accused
 system into service by obtaining internet access” and
 “therefore, control this portion of the accused system.” Id.
     The court then turned to whether the merchants’ use
 of NCR Silver could be attributed to NCR under Centillion
 and Akamai Technologies, Inc. v. Limelight Networks, Inc.,
 

797 F.3d 1020

 (Fed. Cir. 2015) (en banc) (per curiam). Re-
 lying on the legal framework for direct infringement of
 method claims in Akamai, the court held that substantial
 evidence supported the jury’s finding that NCR directed or
 controlled its merchants’ use of the claimed system. In so
 holding, the court distinguished the facts in this case from
 those in Centillion, noting that in Centillion there was “no
 vicarious liability because ‘Qwest in no way direct[ed] its
 customers to perform nor d[id] its customers act as its
 agents.’” Cloudofchange, 

2022 WL 15527756

, at *7 (quot-
 ing Centillion, 

631 F.3d at 1287

). The court concluded that
 “[u]nlike Qwest in Centillion, NCR ‘directs its customers to
 perform’ by requiring its merchants to obtain and maintain
 internet access.” Id. at *8. To support its conclusion, the
 court pointed to the NCR Silver Merchant Agreement as
 evidence that “NCR ‘contracts with [merchants] to perform
 one or more’ of the claimed elements, i.e., internet or net-
 work access.” Id. (quoting Akamai, 

797 F.3d at 1023

) (al-
 teration in original).
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 10                 CLOUDOFCHANGE, LLC v. NCR CORPORATION




     NCR appeals, arguing inter alia that the district court
 erred in denying JMOL of noninfringement. We have ju-
 risdiction under 

28 U.S.C. § 1295

(a)(1).
                         DISCUSSION
     We review the grant or denial of a motion for JMOL
 under the law of the regional circuit. Kaufman v. Microsoft
 Corp., 

34 F.4th 1360

, 1368 (Fed. Cir. 2022). The Fifth Cir-
 cuit reviews the grant or denial of JMOL de novo. Janvey
 v. Dillon Gage, Inc. of Dallas, 

856 F.3d 377, 384

 (5th Cir.
 2017). Under the Fifth Circuit’s standard for JMOL, a
 jury’s determination on infringement must be upheld un-
 less it is not supported by substantial evidence. ACCO
 Brands, Inc. v. ABA Locks Mfrs. Co., Ltd., 

501 F.3d 1307, 1311

 (Fed. Cir. 2007).
                               I
     Because this case turns on the application of Centillion
 and principles of vicarious liability, we begin by discussing
 our precedent and the relevant legal framework.
      This court first addressed the issue of infringement for
 “use” of a system claim that includes elements in the pos-
 session of more than one actor in Centillion. We held that
 a party “uses” a system for purposes of infringement when
 it “control[s] the system as a whole and obtain[s] benefit
 from it.” Centillion, 

631 F.3d at 1284

. The control contem-
 plated is not direct or physical control over each individual
 element of the system, but rather the ability to make the
 system elements “work for their patented purpose” and
 thus use “every element of the system by putting every el-
 ement collectively into service.” 

Id.

     At a high level, the claims at issue in Centillion in-
 volved a system for presenting information to an end user
 related to transaction records and summary reports from
 those records. 

Id. at 1281

. The system claims included
 both a back-end system, maintained by the service pro-
 vider, and a front-end system with a personal computer,
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 CLOUDOFCHANGE, LLC v. NCR CORPORATION                     11



 maintained by the end user. 

Id.

 The accused systems also
 included two parts: (i) Qwest’s back-office system that pro-
 cessed data and (ii) Qwest’s customers’ front-end client ap-
 plication with a personal computer for managing billing
 information. 

Id.

 The parties disputed whether it was
 Qwest or its customers that “used” the claimed system for
 purposes of direct infringement.
     We held that Qwest’s customers (not Qwest) used the
 claimed system as a matter of law. 

Id. at 1285

. Because
 the customers chose when to put the system into service
 either by (1) creating queries, which in turn resulted in the
 back-end processing by Qwest; or (2) by subscribing to re-
 ceive monthly electronic billing information from Qwest’s
 back-office system, we concluded the customer controlled
 the system. We reasoned that if the customer did not make
 the request or subscribe, then the back-end processing
 would not be put into service. 

Id.

 We further explained
 that this was “use” because “but for the customer’s actions,
 the entire system would never have been put into service”
 and “the customer clearly benefit[ed] from this function.”
 

Id.

      We next considered whether Qwest was vicariously li-
 able for the actions of its customers such that the custom-
 ers’ use may be attributed to Qwest. We looked to our
 precedent on vicarious liability regarding both method
 claims and system claims. 

Id.

 at 1286–87 (collecting
 cases). Applying this precedent, we held that because
 Qwest “in no way directs its customers to perform nor do
 its customers act as its agents,” Qwest was not vicariously
 liable for the actions of its customers. 

Id. at 1287

.
                              II
      Turning to the facts of this case, we hold that the dis-
 trict court correctly determined that it is NCR’s merchants
 (not NCR) that use the claimed system. See 

id. at 1284

. As
 the district court explained “NCR, although it owns and op-
 erates the Back Office, does not put the accused system into
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 12                CLOUDOFCHANGE, LLC v. NCR CORPORATION




 service.” Cloudofchange, 

2022 WL 15527756

, at *7. Like
 the customers in Centillion, NCR’s merchants put the sys-
 tem into service because they initiate at the POS terminal
 a demand for service (for example, building or editing a
 POS) and benefit from the back end providing that service.
 NCR’s merchants therefore “control the system as a whole
 and obtain benefit from it.” Centillion, 

631 F.3d at 1284

.
 In other words, the merchants make the system parts
 “work for their patented purpose,” and thus use “every ele-
 ment of the system by putting every element collectively
 into service.” 

Id.

      That NCR occasionally provides the POS hardware
 used by the customer-merchants does not change our view.
 J.A. 8195–96. CloudofChange admitted that, in most
 cases, NCR’s merchants provide their own hardware. And
 CloudofChange did not present different infringement ar-
 guments based on whether NCR merely provided the soft-
 ware or provided both the POS hardware and the software.
 Because in most cases NCR provides only the software to
 the merchant and CloudofChange forfeited any argument
 for those few circumstances where NCR provides the POS
 hardware, we see little daylight between this case and Cen-
 tillion. Moreover, as CloudofChange’s own expert agreed,
 it is NCR’s merchants who put NCR Silver into service,
 control their own use of NCR Silver, and benefit from the
 use of NCR Silver.
     CloudofChange next argues that, in fact, NCR “benefits
 from” the entire NCR Silver system from the monthly sub-
 scription fee, product improvements through testing and
 evaluation, product ideas, transaction data, revenues from
 third-party products and services, marketing rights associ-
 ated with the merchant’s use, and advertising. Appellee’s
 Br. 26–27. But these are not the kind of benefits on which
 Centillion focuses. See, e.g., Intell. Ventures I LLC
 v. Motorola Mobility LLC, 

870 F.3d 1320, 1329

 (Fed. Cir.
 2017) (rejecting notion that an accused infringer need only
 derive a benefit from a claimed component of the claimed
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 CLOUDOFCHANGE, LLC v. NCR CORPORATION                      13



 system to directly infringe). Centillion asks whether a
 party uses the entire claimed system by putting that sys-
 tem to use and receiving the benefit (i.e., the recited pur-
 pose or result) of that use. Here, we agree with the district
 court that it is NCR’s merchants, not NCR, who initiate the
 use of NCR Silver at the POS terminals and benefit from
 the POS builder software at the web server building or ed-
 iting the POS terminals.
                              III
     We now turn to whether NCR is vicariously liable for
 its merchant-customers’ use of the claimed system. As the
 district court correctly recognized, Centillion’s analysis did
 not end after concluding that Qwest’s customers used the
 claimed invention. Instead, we considered whether “Qwest
 is vicariously liable for the actions of its customers such
 that ‘use’ by the customers may be attributed to Qwest.”
 Centillion, 

631 F.3d at 1286

. Answering this question, we
 held that because Qwest “in no way directs its customers
 to perform nor do its customers act as its agents,” Qwest
 was not vicariously liable for the actions of its customers.
 

Id. at 1287

. In so holding, we emphasized that while Qwest
 provided application software and technical assistance, it
 was entirely the decision of the customer whether to install
 and operate the software on its personal computer data
 processing means. 

Id.

     So too here. NCR does not direct or control its mer-
 chants to subscribe to the NCR Silver system, download
 the NCR Silver app on their POS terminals, or put the NCR
 Silver system into use by initiating action at the POS ter-
 minals to cause the NCR Silver software to modify its POS
 terminals. NCR’s merchants take these actions of their
 own accord. That NCR’s Merchant Agreement makes mer-
 chants responsible for obtaining and maintaining Internet
 access does not equate to contractually obligating mer-
 chants put the entire accused NCR Silver system into use.
 We thus conclude as a matter of law that NCR does not
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 14                 CLOUDOFCHANGE, LLC v. NCR CORPORATION




 direct or control its merchants’ use of the claimed system,
 nor do its merchants act as NCR’s agents.
     In concluding otherwise, the district court erred by fo-
 cusing its direction or control analysis on one element of
 the system—Internet access. Because NCR’s Merchant
 Agreement makes merchants responsible for obtaining and
 maintaining Internet access, the district court determined
 “NCR ‘contracts with [merchants] to perform one or more’
 of the claimed elements.”          Cloudofchange, 

2022 WL 15527756

, at *8 (alteration in original) (quoting Akamai,
 

797 F.3d at 1023

). Based on this conclusion, the district
 court held that NCR directed or controlled its merchant-
 customers’ use of the claimed system. But, in the context
 of this case, directing the merchants to perform one ele-
 ment of a system claim is not the proper test for analyzing
 vicarious liability for use of a system claim.
      Specifically, the district court’s analysis conflates use
 of a method claim (which was at issue in Akamai) with use
 of a system claim (which was at issue in Centillion). “Un-
 der section 271(a), the concept of ‘use’ of a patented method
 or process is fundamentally different from the use of a pa-
 tented system or device.” NTP, Inc. v. Rsch. In Motion,
 Ltd., 

418 F.3d 1282, 1317

 (Fed. Cir. 2005). “[T]he use of a
 process necessarily involves doing or performing each of
 the steps recited,” while the “use of a system as a whole”
 involves putting that entire system to use and benefitting
 from it. 

Id. at 1318

.
     In Akamai, the accused infringer, Limelight, per-
 formed every step of the claimed method except one, which
 was performed by its customer. Akamai, 

797 F.3d at 1024

.
 It was in this unique context that this court focused on one
 claim element (the one that Limelight itself did not per-
 form) and considered whether Limelight directed or con-
 trolled its customers’ performance of this claim step. 

Id. at 1024

. After answering this question in the affirmative,
 the court held that Limelight was vicariously liable for the
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 CLOUDOFCHANGE, LLC v. NCR CORPORATION                      15



 performance of all the steps of the method claim because it
 either performed or directed or controlled the performance
 of all of the claim elements. 

Id.

 at 1024–25.
     Applying the vicarious liability principles from Akamai
 to this case, the appropriate question is whether NCR di-
 rected or controlled or should otherwise be vicariously lia-
 ble for its customers’ use of the system claim. Specifically,
 the issue is whether NCR directed or controlled its mer-
 chant-customer’s actions in putting the entire claimed sys-
 tem to service to build or edit POS systems. As the
 contractual obligation to supply an Internet connection
 does not amount to direction or control of a merchant’s use
 of the claimed system to build POS systems, we hold that
 NCR is not vicariously liable for that infringing use.
                         CONCLUSION
     Because we conclude the district court erred in denying
 JMOL of no infringement, we do not reach the other issues
 presented on appeal. 2 For the reasons discussed above, we
 reverse the district court’s denial of JMOL and vacate the
 jury verdict. 3
                        REVERSED




     2    At oral argument, NCR contingently abandoned its
 counterclaim for declaratory judgment of invalidity should
 this court reverse the infringement verdict. Oral Arg.
 at 8:03–8:57, https://oralarguments.cafc.uscourts.gov/de-
 fault.aspx?fl=23-1111_06042024.mp3. Accordingly, we do
 not reach the issue of invalidity.
      3   In light of our disposition on the merits, we deny as
 moot Appellant NCR’s Renewed Motion Regarding IPR De-
 cisions asking us to take judicial notice of inter partes re-
 view decisions related to the Asserted Patents (ECF
 No. 67).