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Huawei Technologies Co. Ltd v. T-Mobile Us, Inc.

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

September 4, 2017

HUAWEI TECHNOLOGIES CO. LTD, Plaintiffs,
v.
T-MOBILE US, INC. and T-MOBILE U.S.A., INC., Defendants.

          MEMORANDUM OPINION

          ROY S. PAYNE UNITED STATES MAGISTRATE JUDGE

         In this patent case, the Court now considers T-Mobile's Motion to Strike Arguments From The Nettleton Initial Report [Dkt. # 261]. The Court will GRANT T-Mobile's Motion IN PART.

         I. BACKGROUND

         A. Huawei's Infringement Contentions and the New Infringement Theory

         Huawei's U.S. Patents 8, 069, 365 and 8, 719, 617 relate to a wireless communication network component called an IP Multimedia Subsystem, or “IMS, ” that facilitates certain packet-based communications (e.g., Internet access and web services) over the network. The IMS includes a Serving CSCF (S-CSCF), which acts as the core of the network service processing and is “quite important to . . . the high reliability of the IMS.” '365 Patent at 1:28-33.

         Generally, Huawei's asserted claims concern “IMS Restoration, ” a feature that allows quick recovery (relative to the prior art) of IMS network service should a particular S-CSCF fail. Claims 1, 3, and 27 of the '365 Patent, and claim 1 and claim 4 of the '617 Patent, focus on the method of IMS Restoration. Claims 5, 7, and 10 of the '617 Patent are directed to S-CSCFs configured (e.g., loaded with software) to perform IMS Restoration.

Huawei's original infringement contentions alleged
the Asserted Claims are infringed by T-Mobile's 2G, 3G, and 4G3 LTE wireless networks operated across the country for use by others at TMobile's encouragement (collectively referred to as the “Accused Instrumentalities” or “Infringing Wireless Networks”). The Accused Instrumentalities include the sub-systems, products, components, and software thereof that are made, used, or offered by or for T-Mobile, including as used with third party products and systems. For example, the Accused Instrumentalities include, but are not limited to, hardware and software components such as a . . . Serving Call Session Control Function (“S-CSCF”).

         Orig. Infringement Contentions (June 16, 2016) [Dkt. # 261-7] at 3 (footnote omitted). Huawei later amended its contentions to add references to S-CSCFs provided by T-Mobile suppliers Mavenir and Nokia. See Second Supp. to Infringement Contentions (May 17, 2017) [Dkt. # 261-8] at 4-5. Although Huawei's contentions have always included general allegations of “making” components of the network, they have never specifically alleged T-Mobile is liable for infringement by making S-CSCFs using the Mavinir and Nokia software.

         Dr. Ray Nettleton's expert report changed that. Nettleton, who is Huawei's infringement expert, asserted T-Mobile “makes” the accused S-CSCF by “installing on hardware(which is making) . . . the S-CSCF software product in claims 7 and 10 [of the '617 Patent].” Nettleton Rep. (June 5, 2017) [Dkt. # 261-1] ¶ 591. T-Mobile complains this is a new infringement theory outside the scope of Huawei's contentions and asks the Court to prohibit Nettleton from testifying on this point. T-Mobile's Motion [Dkt. # 261] at 9-12. Huawei counters this part of Nettleton's report falls under its infringement contentions as amended throughout the case. Huawei's Resp. [Dkt. # 280] at 5-8.

         B. The Adverse Inference

         T-Mobile also complains Dr. Nettleton improperly draws an adverse inference from T-Mobile's assertion of attorney-client privilege during a deposition of Erik Kosar, a T-Mobile engineer and Rule 30(b)(6) witness. During the deposition, Huawei repeatedly asked Kosar why T-Mobile put implementation of IMS Restoration on hold. But each time Huawei approached the subject, T-Mobile's counsel instructed Kosar not to answer on the basis of attorney-client privilege:

Q. Do you know why the [IMS Restoration] was placed on hold as of August 3rd, 2016?
MS. ZALEWSKI: Object, because the question might call for attorney-client privileged communications. If you can answer without revealing attorney-client privileged ...

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