United States District Court, E.D. Texas, Marshall Division
MEMORANDUM OPINION AND ORDER
PAYNE, UNITED STATES MAGISTRATE JUDGE
the Court is CEATS, Inc.'s Opposed Motion to Exclude
Testimony and Strike the Expert Report of Dr. V. Thomas Rhyne
[Dkt. # 114]. After considering the parties' briefing,
the Court will GRANT the motion IN
business comprises four components. First, it markets ticket
inventory owned by others directly to end users through
internally owned and operated websites, such as
TicketNetwork.com and TicketLiquidator.com. Kruse Decl. (Oct.
27, 2017) [Dkt. # 112-28] ¶ 4. Second, it licenses a
range of products and services to independently owned,
operated, and controlled third-party ticket marketers.
Id. ¶ 5. Third, it operates a backend ticket
exchange whereby ticket brokers exchange ticket inventory
with one another. Id. ¶ 6. Fourth, it operates
a call center for its internal and third-party websites for
facilitating purchases by end users. Id. ¶ 9.
2010, CEATS sued TicketNetwork for patent infringement. The
parties settled mid-trial and later executed a license
agreement concerning 16 of CEATS's patents. Settlement
& License Agreement for CEATS Patents (Mar. 28, 2012)
[Dkt. # 38-5] (hereafter, “the Agreement”).
lawsuit concerns TicketNetwork's alleged breach of the
Agreement. CEATS contends TicketNetwork has not performed its
obligation under Paragraph 5.2 of the Agreement to pay CEATS
$0.50 for each “Transaction, ” which is
“[t]he purchase of one ticket directly using an online
ticketing system freely available via the Internet from a
general purpose computer, without the use of any dedicated
resident ticket vending software on such computer, providing
such system includes the Subject Functionality.”
CEATS' Standard Licensing Rates [Dkt. # 38-34]; see
also Agreement [Dkt. # 38-5] ¶ 1.13 (defining
“Transaction” to have “the meaning set
forth in CEATS' Standard Licensing Rates for Licenses
Under the Patent Portfolio Held by CEATS, Inc.”).
“Subject Functionality” means
“[f]unctionality in a system or method that provides
(i) an interactive seat map and (ii) additional information
or an additional display of information in response to user
interaction with the display of seats in such seat map by
placing a mouse indicator over the seat map.”
CEATS' Standard Licensing Rates [Dkt. # 38-34]; Agreement
[Dkt. # 38-5] ¶ 1.10 (defining “Subject
Functionality” to have “the meaning set forth in
CEATS' Standard Licensing Rates for Licenses Under the
Patent Portfolio Held by CEATS, Inc.”).
functionality at issue concerns TicketNetwork's web
interface that allows a user to purchase tickets on-line. In
the image below, which is exemplary only, the interface
(everything inside the red dashed line) includes an available
ticket listing panel (blue) on the left side that is
populated by a listing of sections with available seats. The
right side of the interface (green dashed line) is a venue
diagram providing a display of seats. When a user rolls a
mouse icon over a section of available seats in the left
(blue) panel, the interface highlights the physical location
of those seats in the right venue-diagram panel.
parties' main dispute concerns the meaning of “seat
map” in the definition of Subject Functionality and how
it applies to this layout. TicketNetwork contends the
“seat map” is limited to the right panel-what
CEATS calls the “venue diagram”-and the
“display of seats” is the collection of seats
composing the seat map along with any other elements of the
event venue, such as the concert stage. Defs.' Summ. J.
Reply [Dkt. # 147] at 5 n.3. CEATS agrees the “display
of seats” makes up the venue diagram map and that it is
separate from the available ticket list. Pl.'s Resp. to
Defs.' Mot. for Summ. J. [Dkt. # 138] at 7 (“On the
right-hand side of the interface . . . is a dynamic venue
diagram providing a display of seats.”); Pl.'s
Sur-Reply [Dkt. # 156] at 1 (“A ‘display of
seats' is a subset of the larger phrase ‘seat
map' . . . .”). But CEATS contends the “seat
map” is the entire interface (in this example,
everything within the red dashed line), including the
available ticket list within the left panel.
summarizes the parties' positions with this graphic:
Mot. for Summ. J. [Dkt. # 112] at 24.
Rhyne is TicketNetwork's expert on two broad subjects:
(1) What constitutes use of the Subject Functionality, Rhyne
Opening Rep. (Oct. 16, 2017) [Dkt. # 125-1] at 19-53, and (2)
when TicketNetwork implemented the Subject Functionality,
id. at 53-80. Rhyne is a former professor of
computer engineering, id. at 2, an experienced
programmer, id. at 3, and a registered practitioner
with the USPTO, id. at Ex. A (p.4). He served as
TicketNetwork's technical expert in the prior litigation.
Id. at 7 (¶ 28).
motion lodges two complaints concerning Rhyne's report.
First, because this case concerns contract
interpretation-i.e., the meaning of “Subject
Functionality” in the Agreement-Rhyne may not provide
conclusions as to the meaning of that term or the
parties' intent in reaching the Agreement. Second, Rhyne
improperly relies on cherry-picked screen shots and hearsay.