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Traxcell Technologies, LLC v. AT&T Corp.

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

September 18, 2019

TRAXCELL TECHNOLOGIES, LLC., Plaintiff,
v.
AT&T CORP. and AT&T MOBILITY LLC, SPRINT COMMUNICATIONS COMPANY, LP, SPRINT SPECTRUM, LP, and SPRINT SOLUTIONS, INC., VERIZON WIRELESS PERSONAL COMMUNICATIONS, LP, Defendants.

          MEMORANDUM AND ORDER

          ROY S. PAYNE UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Traxcell Techonologies, LLC’s Daubert Motion to Exclude Testimony of Verizon’s Designated Experts Dr. Shoemake and Mr. Rysavy. (Dkt. No. 309.) Traxcell argues that several different opinions presented within Dr. Shoemake’s and Mr. Rysavy’s reports should be excluded. First, Traxcell argues that Dr. Shoemake improperly reads a limitation into Claims 1–11 of the ’388 Patent that the second processor must be in the network. (Dkt. No. 309 at 3–4, 11–12.) Second, Traxcell argues that Dr. Shoemake improperly reads a requirement into the ’388 Patent claims that the preference flag must be set on the network side or on the device side. (Id. at 4–5, 12.) Third, Traxcell argues that Dr. Shoemake’s apportionment analysis is not adequately supported for various reasons. (Id. at 7–10, 13–14.) Fourth, Traxcell argues that Rysavy provides improper interpretations of the “location” term that conflict with the Claim Construction Order (“Markman Order”). (Id. at 6–7, 12–13.)

         After consideration, the Court DENIES Traxcell’s Motion. The Court concludes that Dr. Shoemake’s and Rysavy’s opinions do not contradict the Markman Order and that any criticisms raised by Traxcell for Dr. Shoemake’s apportionment opinions are better suited for cross-examination.

         I. Shoemake’s interpretation that the second processor must be in the network will not be excluded.

         Traxcell argues that Dr. Shoemake improperly reads a limitation into Claims 1–11 of the ‘388 Patent that the second processor must be in the network. (Dkt. No. 309 at 3–4, 11–12.) Traxcell argues that this interpretation conflicts with the Markman Order and that this interpretation should therefore be excluded. (Id. at 11–12.) Thus, the question here is whether Dr. Shoemake’s opinion conflicts with the Markman Order. The Court concludes that it does not.

         The Court previously construed the “second processor” term. (Dkt. No. 171 at 51–53.) The Court concluded that “it is clear from the claim language the ‘second processor’ of [Independent Claims 1 and 11] is within the wireless network.” (Id. at 53.) Because the surrounding claim language made it clear that the second processor was within the wireless network, the Court concluded that “[t]his suggests that ‘a second processor’ is not inherently ‘within the wireless communications network.’” (Id. (citing Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc) (noting that the use of the term “steel baffles” “strongly implies that the term ‘baffles’ does not inherently mean objects made of steel”)).) Thus, because of the clarity within the surrounding claim language that the claimed second processor was in the wireless network, there was no need to inject additional limitations into the second processor term.

         Accordingly, the Court DENIES Traxcell’s Motion on this ground.

         II. Shoemake’s opinion that the preference flag must be communicated to the wireless network will not be excluded at this time.

         Traxcell argues that Dr. Shoemake improperly reads a requirement into the ‘388 Patent claims that the preference flag must be set on the network side or on the device side. (Id. at 4–5, 12.) Verizon states that “Dr. Shoemake explained in detail and at length at his deposition that the mobile device setting Dr. Helgert has opined meets the ‘preference flags’ limitation would have to be communicated to the ‘second processor’ given the plain and ordinary meaning of the claims.” (Dkt. No. 322 at 5.) Verizon therefore argues that “Traxcell has offered no explanation why these opinions in any way conflict with the [Markman Order].” (Id.)

         The critical issue here is whether Dr. Shoemake’s opinion on this issue conflicts with the Markman Order. “Expert opinions that contradict or disregard a court’s claim constructions should be excluded.” Genband U.S. LLC v. Metaswitch Networks Corp., No. 2:14-CV-33-JRG-RSP, 2016 WL 3475688, at *4 (E.D. Tex. Jan. 7, 2016) (citing MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 913 (Fed. Cir. 2012) (“expert testimony [that] ignored the court’s claim construction ‘is irrelevant to the question of infringement’ and is inadmissible under Daubert”); Cordis Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1357–58 (Fed. Cir. 2009)). This is an inquiry of substance rather than form. Id. A “failure to use the district court’s exact words does not change the substance of [an expert’s] testimony or render it inapplicable.” Id. (citing Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1378 (Fed. Cir. 2008)).

         The Court concludes that Dr. Shoemake’s opinion on this issue does not conflict with the Markman Order. The Court construed “preference flags” to mean “two or more flags to control access to tracking of the user.” (Dkt. No. 171 at 55.) The Court did not provide any construction for the question of whether the preference flags must be set within or communicated to the second processor as this issue was not presented to the Court for construction. Thus, Shoemake’s opinion with respect to this question does not conflict with any construction provided by the Court. Instead, Dr. Shoemake’s construction is based on his understanding of the plain and ordinary meaning of the claims. (Dkt. No. 322 at 5.) Because Dr. Shoemake’s opinion has not been shown to conflict with any of the Court’s constructions, Court will not strike Shoemake’s opinions at this time.

         For these reasons, the Court DENIES Traxcell’s Motion on this ground.

         III. The Court will not exclude any opinion within Dr. Shoemake’s apportionment analysis.

         Traxcell argues that Dr. Shoemake’s apportionment opinions should be excluded because he is not sufficiently qualified and because his methods are unreliable. (Dkt. No. 309 at 7–10, 13– 14.) After consideration, the Court will not exclude any of Dr. Shoemake’s opinions related to his apportionment analysis ...


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