United States District Court, E.D. Texas, Tyler Division
SEALED MEMORANDUM OPINION AND ORDER
D. LOVE, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Realtime Data, LLC's
(“Realtime”) Motion to Exclude Certain Opinions
of Defendant's Invalidity and Marking Expert Clifford
Reader. (Doc. No. 433.) Defendant Riverbed Technology, Inc.
(“Riverbed”) has filed a Sealed Response (Doc.
No. 450), Realtime has filed a Sealed Reply (Doc. No. 460),
and Riverbed has filed a Sur-Reply (Doc. No. 472).
reasons stated herein, the Court DENIES Plaintiff's
Motion. (Doc. No. 433.)
alleges that Riverbed infringes certain claims of three U.S.
Patents. The Asserted Patents generally relate to different
systems and methods of data compression. Specifically,
Realtime alleges that certain SteelHead WAN optimization
products infringe the Asserted Claims of the Asserted
has designated Dr. Clifford Reader as a Technical Expert in
this matter. Dr. Reader has submitted two expert reports: 1)
an expert report regarding the invalidity of the Asserted
Patents and 2) an expert report regarding marking of third
party products sold by Realtime licensees. (See Doc.
No. 433, Ex. 1 (“Reader Invalidity Rep.”); Doc.
No. 433, Ex. 3 (“Reader Marking Rep.”).) In his
Expert Report regarding invalidity, Dr. Reader uses U.S.
Patent No. 5, 990, 810 to Williams (“Williams
Patent”) as one of his primary prior art references.
(See Reader Invalidity Rep., ¶¶254-61,
277-79, 293.) Dr. Reader specifically bases his Williams
Patent invalidity opinions on Realtime's infringement
theories. (See, e.g., id. at ¶206
(“Blocks or subblocks may be represented by their data,
by their identity, or by reference. I understand plaintiff
contends this constitutes compression. . .”).) In other
words, Dr. Reader relies on Realtime's interpretation of
the claims in conducting his analysis, despite stating that
he does not necessarily agree with those interpretations.
(See Id. at ¶234 (identifying “several
specific assumptions expressed in Realtime's infringement
contentions on which I do not offer an opinion and do not
Reader's Expert Report regarding marking, Dr. Reader
similarly relies on Realtime's interpretation of the
claims in analyzing whether third party products are
allegedly covered by the Asserted Patents. (Reader Marking
Rep., ¶3 (“in my analysis in this report, I apply
Realtime's apparent theories of infringement as described
in its infringement contentions and the Mitzenmacher Reports.
. .”).) Dr. Reader also references the Court's
constructions from a previous Realtime case, the
Packeteer action, where Realtime had specifically
alleged that these third party products infringed other
Realtime patents. (Id. at ¶13.)
702 provides that an expert witness may offer opinion
testimony if (a) the expert's scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b)
the testimony is based on sufficient facts or data; (c)
testimony is the product of reliable principles and methods;
and (d) the expert has reliably applied the principles and
methods to the facts of the case. Fed.R.Evid. 702.
inquiry envisioned by Rule 702 is . . . a flexible one,
” but, in Daubert, the Supreme Court held that
the Rules also “assign to the trial judge the task of
ensuring that an expert's testimony both rests on a
reliable foundation and is relevant to the task at
hand.” Daubert v. Merrell Dow Pharms. Inc.,
509 U.S. 579, 594, 597 (1993); see also Apple Inc. v.
Motorola, Inc., 757 F.3d 1286, 1321 (Fed. Cir. 2014)
(“Experts routinely rely upon other experts hired by
the party they represent for expertise outside of their
field.”); TQP Dev. LLC v. 1-800-Flowers.com,
Inc., Case No. 2:11-cv-248-JRG, 2015 WL 6694116, at *4
(E.D. Tex. Nov. 3, 2015) (“Dr. Becker was entitled to
rely upon Dr. Jager's technical analysis when
constructing his damages model and presenting it to the
relevance prong [of Daubert] requires the proponent
[of the expert testimony] to demonstrate that the
expert's ‘reasoning or methodology can be properly
applied to the facts in issue.'” Johnson v.
Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (quoting
Curtis v. M & S Petroleum, Inc., 174 F.3d 661,
668 (5th Cir. 1999)). “The reliability prong [of
Daubert] mandates that expert opinion ‘be
grounded in the methods and procedures of science and . . .
be more than unsupported speculation or subjective
belief.'” Johnson, 685 F.3d at 459
(quoting Curtis, 174 F.3d at 668).
assessing the “reliability” of an expert's
opinion, the trial court may consider a list of factors
including: “whether a theory or technique . . . can be
(and has been) tested, ” “whether the theory or
technique has been subjected to peer review and publication,
” “the known or potential rate of error, ”
“the existence and maintenance of standards, ”
and “general acceptance” of a theory in the
“relevant scientific community.”
Daubert, 509 U.S. at 593-94; see also Kumho
TireCo., Ltd. v. Carmichael, 526 U.S. 137, 150
(1999) (“Daubert makes clear that the factors
it mentions do not constitute a ‘definitive
checklist or test.'”); U.S. v. Valencia,
600 F.3d 389, 424 (5th Cir. 2010).“The proponent need
not prove to the judge that the expert's testimony is
correct, but she must prove by a preponderance of the
evidence that the testimony is reliable.”
Johnson, 685 F.3d at 459 (quoting Moore v.
Ashland Chem., Inc., 151 F.3d ...