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Realtime Data, LLC v. Actian Corp.

United States District Court, E.D. Texas, Tyler Division

April 3, 2017




         Before 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).

         For the reasons stated herein, the Court DENIES Plaintiff's Motion. (Doc. No. 433.)

         I. BACKGROUND

         Realtime 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 Patents.

         Riverbed 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 necessarily agree.”).)

         In Dr. 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.)


         Rule 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)

         the 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.

         “The 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., 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 jury.”).

         “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).

         In 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 ...

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