United States District Court, E.D. Texas, Tyler Division
NETWORK-1 TECHNOLOGIES, INC.
ALCATEL-LUCENT USA, INC.,
NICOLE MITCHELL UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion to Exclude Certain
Opinions and Testimony of Dr. James Knox. Doc. No. 821. The
Court held a hearing on this Motion on June 1, 2017. The
Motion is DENIED.
Network-1 Technologies, Inc. (“Network-1”)
accuses Defendants of infringing U.S. Patent No. 6, 218, 930
(“the ‘930 Patent”). The ‘930 Patent
relates to an apparatus and method for remotely powering
access equipment over a 10/100 switched Ethernet network.
See ‘930 Patent.
2, 2016, the Court held a claim construction hearing on the
disputed terms of the ‘930 Patent. The Court
subsequently construed “low level current” to
mean “a non-data-signal current that is sufficient to
begin start up of the access device but that is not
sufficient to sustain the start up.” Doc. No. 693 at
Knox, Plaintiff's infringement expert, presents certain
opinions regarding whether the Defendants' accused
products infringe the asserted claims of the ‘930
Patent. Doc. No. 855, Ex. 3, Oct. 13, 2016 Expert Report of
Dr. James M. Knox (“Knox's Report”).
Defendants challenge these opinions under Daubert.
Doc. No. 821.
Federal Rule of Evidence 702, a witness who is qualified as
an expert by knowledge, skill, experience, training or
education may testify in the form of an opinion or otherwise
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.
trial judge has a gate-keeping role to ensure that expert
testimony is relevant and reliable. Daubert v. Merrill
Dow Pharm., Inc., 509 U.S. 579 (1993). Indeed,
“[t]he proponent [of the expert testimony] 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.” Moore v.
Ashland Chemical, Inc., 151 F.3d 269, 276 (5th. Cir.
1998). “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 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)).
to consider in determining whether a proposed expert's
methodology is scientifically valid or reliable are:
(1) whether the expert's theory can be or has been
(2) whether the theory has been subject to peer review and
(3) the known or potential rate of error of the technique or
theory when applied;
(4) the existence and maintenance of standards and controls;
(5) the degree to which the technique or theory has been
generally accepted in the scientific community.
See Daubert, 509 U.S. at 593-95. A court must decide
whether the Daubert factors are appropriate, use
them as a starting point, and then ascertain if other factors
should be considered. Hathaway v. Bazany, 507 F.3d
312, 318 (5th Cir. 2007).
Kumho Tire Company, Limited v. Carmichael, the
Supreme Court applied the Daubert principles to
technical or specialized expert testimony. 526 U.S. 137
(1999). The Court explained that the overarching goal of
Daubert's gate-keeping requirement is to
“ensure the reliability and relevancy of expert
testimony. It is to make certain that an expert, whether
basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field.” Id. at 152. A
trial court has the discretion to exclude expert testimony if
there is “simply too great an analytical gap”
between the expert's reasoning and the conclusion.
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
base, ‘the question of whether the expert is credible
or the opinion is correct is generally a question for the
fact finder, not the court.'” Eidos Display,
LLC v. Chi Mei Innolux Corp., No. 6:11-cv-201-JRG, 2017
WL 1079441, at *2 (E.D. Tex. Mar. 22, 2017) (quoting
Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d
1283, 1296 (Fed. Cir. 2015)). “Under Rule 702, the
question is whether the expert relied on facts sufficiently
related to the disputed issue.” i4i Ltd. P'ship
v. Microsoft Corp., 598 F.3d 831, 856 (Fed. Cir. 2010),
aff'd, 564 U.S. 91 (2011). “To properly
carry this burden, the patentee must ‘sufficiently [tie
the expert testimony on damages] to the facts of the
case.'” Uniloc USA, Inc. v. Microsoft
Corp., 632 F.3d 1292, 1315-16 (Fed. Cir. 2011) (citation
omitted). “Questions about what facts are most relevant
or reliable to calculating a reasonable royalty are for the
jury.” i4i Ltd. P'ship, 598 F.3d at 856.
“The jury [is] entitled to hear the expert testimony
and decide for itself what to accept or reject.”
and Rule 702 are safeguards against unreliable or irrelevant
opinions, not guarantees of correctness.” Id.
at 854. Also, the “existence of other facts . . . does
not mean that the facts used failed to meet the minimum
standards of relevance or reliability.” Id. at
855-56. For example, “any reasonable royalty analysis
necessarily involves an element of approximation and
uncertainty.” Lucent Techs., Inc. v. Gateway,
Inc., 580 F.3d 1301, 1325 (Fed. Cir. 2009) (citation and
internal quotation omitted).
Opinion and Claim Construction
the infringement analysis, “the court first determines
the meaning of disputed claim terms and then compares the
accused device to the claims as construed.”
Wavetronix LLC v. EIS Elec. Integrated Sys., 573
F.3d 1343, 1354 (Fed. Cir. 2009) (citation omitted).
“The infringement inquiry compares properly construed
claims with the accused product or process.” Atl.
Thermoplastics Co., Inc. v. Faytex Corp., 974 F.2d 1299,
1300 (Fed. Cir. 1992) (citations omitted). An expert's
infringement opinion must use “the claim ...