United States District Court, E.D. Texas, Tyler Division
NETWORK-1 TECHNOLOGIES, INC.
ALCATEL-LUCENT USA, INC., ET AL.
NICOLE MITCHELL UNITED STATES MAGISTRATE JUDGE
the Court is Network-1 Technologies, Inc.'s Motion to
Exclude Certain Opinions of Hewlett-Packard Company's
(“HP”) Expert, Dr. M. Ray Perryman. Doc. No.
The Court held a hearing on this Motion on June 19, 2017
(“Hearing on the Motion”). The Motion is
filed the above-captioned suit on September 15, 2011,
alleging infringement of U.S. Patent No. 6, 218, 930
(“the ‘930 Patent”). Defendant
Hewlett-Packard Company (“HP”) retained M. Ray
Perryman (“Perryman”) to generally opine
regarding “F/RAND licensing and the F/RAND licensing
commitment” to the IEEE of Network-1 Security
Solutions, Inc. (“Network-1). Doc. No. 810, Ex. 1 at 3.
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, 259
(5th Cir. 2012) (quoting Curtis v. M & S Petroleum,
Inc., 174 F.3d 61, 668 (5th Cir. 1999)).
to consider in determining whether a proposed expert's
methodology is scientifically valid or reliable is:
(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.
Id. 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 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 an
“analytical gap” between the expert's
reasoning and the conclusion. General Electric Co. v.
Joiner, 522 U.S. 136, 118 S.Ct. 512, 177 A.L.R. Fed. 667
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., 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).
“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 or reliability.” Id. at 855-56.
“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
seeks to exclude Perryman's opinions: (1) regarding
royalty stacking; (2) applying definitions from the
IEEE's 2015 update to its patent policy; (3) regarding
patent holdup; (4) and ...