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Mobility Workx, LLC v. Verizon Communications, Inc

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

November 5, 2019

MOBILITY WORKX, LLC, Plaintiff,
v.
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT & UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant's Motion to Strike and Exclude Certain Portions of the Expert Testimony of Sukumaran Nair, Ph.D. (Dkt. #99); Defendant's Motion to Strike the Expert Disclosure of Dr. Sumi Helal and Dr. Edwin Hernandez (Dkt. #101); Defendant Verizon Wireless's Motion to Exclude the Opinion of Dr. Edwin A. Hernandez (Dkt. #102); and Plaintiff Mobility Workx, LLC's Motion to Strike Portions of James Proctor's Expert Report (Dkt. #104). Having considered the Motions and the relevant pleadings, the Court finds that: (1) Defendant's Motion to Strike and Exclude Certain Portions of the Expert Testimony of Sukumaran Nair, Ph.D. (Dkt. #99) is DENIED in part-the remaining disputes will be taken up at the Final Pretrial Conference; (2) Defendant's Motion to Strike the Expert Disclosure of Dr. Sumi Helal and Dr. Edwin Hernandez (Dkt. #101) is GRANTED; (3) Defendant Verizon Wireless's Motion to Exclude the Opinion of Dr. Edwin A. Hernandez (Dkt. #102) is DENIED; and (4) Plaintiff Mobility Workx, LLC's Motion to Strike Portions of James Proctor's Expert Report (Dkt. #104) is DENIED in part-the remaining disputes will be taken up at the Final Pretrial Conference.

         BACKGROUND

         Plaintiff Mobility Workx, LLC, (“Mobility Workx”) is a limited liability company organized and existing under the laws of the State of Florida (Dkt. #1). Mobility Workx owns several complex patents in various fields including communications systems and wireless network emulators (Dkt. #1). Among Mobility Workx' portfolio of patents are “patents that teach valuable innovations and improvements related to predictive systems for supporting wireless communications” (Dkt. #1). This action concerns three of those patents.

         According to Mobility Workx, Defendants Verizon Communications, Inc. and Cellco Partnership D/B/A Verizon Wireless (“Verizon”) infringed on three of Mobility Workx' patents: namely, Mobility Workx' “‘508 Patent, ” “‘417 Patent, ” and “‘330 Patent” (Dkt. #1). The ‘508 Patent was issued on April 13, 2010 as U.S. Patent No. 7, 697, 508 (Dkt. #1). The patent was entitled “System, Apparatus, and Methods for Proactive Allocation of Wireless Communication Resources” and was invented by Edwin A. Hernandez and Abdelsalam A. Helal (Dkt. #1). According to Mobility Workx, the ‘508 Patent “teaches, among other things, a system for allocation of resources in a communication network for supporting wireless communications” (Dkt. #1). Specifically, the ‘508 Patent “leads to reduced delays and information losses in wireless communication networks by reducing registration overheard and setup times associated with mobile node handoffs” (Dkt. #1). This is achieved “by allocating communication network resources proactively rather than reactively” (Dkt. #1).

         The ‘417 Patent was issued on July 3, 2012 as U.S. Patent No. 8, 213, 417 (Dkt. #1). The patent was also entitled “System, Apparatus, and Methods for Proactive Allocation of Wireless Communication Resources” and was also invented by Edwin A. Hernandez and Abdelsalam A. Helal (Dkt. #1). The ‘417 Patent accomplishes the same feats as the ‘508 Patent discussed above (Dkt. #1).

         The ‘330 Patent was issued on June 12, 2007 as U.S. Patent No. 7, 231, 330 (Dkt. #1). The patent was entitled “Rapid Mobility Network Emulator Method and System” and was invented by Edwin A. Hernandez-Mondragon and Abdelsalam A. Helal (Dkt. #1). The ‘330 Patent, according to Mobility Workx, “teaches, among other things, a system and method for emulating mobile network communications” (Dkt. #1). The ‘330 Patent is different than the ‘508 and ‘417 Patents. For instance, the ‘330 Patent provides “for the modeling and testing of various mobile network configurations and scenarios” (Dkt. #1). This is accomplished by “dynamically adjusting the signal reception sensitivity and signal transmission strength of each wireless node and by emulating at least one wireless network node attribute to stimulate network conditions by the mobile node in communicating with network-connected nodes” (Dkt. #1).

         The ‘508 Patent, ‘417 Patent, and ‘330 Patent were all assigned by Dr. Hernandez and Dr. Helal-Mobility Workx' managing partners-to Mobility Workx. Consequently, Mobility Workx is “the owner of all substantial right, title, and interest in and to the Patents-in-Suit” (Dkt. #1). Despite Mobility Workx owning the rights to each patent, Mobility Workx asserts that Verizon has begun offering to sell a product (“the Accused Product”) which infringes on all three of Mobility Workx' patents (Dkt. #1). Verizon denies infringing upon Mobility Workx' ‘508 Patent, ‘417 Patent, and ‘330 Patent (Dkt. #12).

         After both parties served their respective Expert Reports, each party filed motions to strike and/or exclude specific experts or opinions. At the outset, it should be noted that each Motion filed by Mobility Workx or Verizon includes its own specific facts. For the sake of clarity, this portion of the Court's opinion only addresses an overview of the case and leave the Motion- specific facts for each respective Part below. The Motions that those portions of the opinion will address are as follows.

         Part I concerns Verizon's Motion to Strike and Exclude Certain Portions of the Expert Testimony of Sukumaran Nair, Ph.D. (Dkt. #99). In its Motion, Verizon claims that Dr. Nair's report contains new infringement theories that were absent from Mobility Workx Infringement Contentions (“ICs”) (Dkt. #99). Verizon accordingly requests that these new theories be stricken (Dkt. #99). Additionally, Verizon claims that certain opinions of Dr. Nair “are incomplete, conclusory, and/or conflicting with the Court's claim construction” (Dkt. #99). Verizon requests that those opinions be excluded under Daubert (Dkt. #99). Mobility Workx opposes Verizon's Motion and claims that: (1) the Motion is untimely; (2) Dr. Nair does not introduce any new theories of infringement; and (3) Dr. Nair's opinions comply with the Daubert standard (Dkt. #111).

         Part II addresses Verizon's Motion to Strike the Expert Disclosure of Dr. Sumi Helal and Dr. Edwin A. Hernandez (Dkt. #101). In this Motion, Verizon argues that Mobility Workx designated Dr. Helal as an expert but failed to serve Verizon with an expert report as required by Rule 26(a)(2)(B) and the Court's Scheduling Order (Dkt. #101). Verizon further asserts that Mobility Workx designated Dr. Hernandez as an expert over certain topics that “were not contained within Dr. Hernandez's ‘expert' report” (Dkt. #101). Thus, Verizon requests that the Court strike the expert disclosure of each of Mobility Workx' experts. Mobility Workx counters that: (1) Verizon's Motion is untimely; and (2) Dr. Helal and Dr. Hernandez concurred with Dr. Nair's revised expert report and thus there is no element of surprise for Verizon. Mobility Workx also requests that, should the Court grant Verizon's Motion, the Court additionally grant Mobility Workx leave to file a late expert report by Dr. Helal and Dr. Hernandez (Dkt. #109).

         Part III then addresses Verizon's third Motion. Following its first two Motions, Verizon filed a Motion to Exclude the Opinions of Dr. Edwin A. Hernandez (Dkt. #102). Verizon claims that Dr. Hernandez is not qualified as a damages expert and that his royalty rate does not reflect “reliable principles and methods” and is not “based on sufficient facts or data” (Dkt. #102). Accordingly, Verizon requests that the Court exclude the opinions of Dr. Hernandez (Dkt. #102). Mobility Workx opposes Verizon's Motion (Dkt. #110). Mobility Workx claims that Dr. Hernandez is qualified to render opinions on damages and that the methodology he relied upon is sound (Dkt. #110).

         Finally, Part IV addresses Mobility Workx' Motion to Strike Portions of James Proctor's Expert Report (Dkt. #104). Here, Mobility Workx requests that the Court strike Proctor's obviousness opinions, standards opinions, all portions referring to new references, discussion of the '330 background, all unsupported written description opinions, all portions contrary to the Court's claim construction, all references to incorporated invalidity charts, paragraph 208 referring to Claim 7, and any highlighted portions in Mr. Proctor's Expert Report not discussed in Mobility Workx' Motion (Dkt. #104). Verizon opposes Mobility Workx' Motion and claims that: (1) Proctor's obviousness opinion was properly disclosed; (2) Proctor's standards opinion was properly disclosed; (3) Proctor's reliance on Mobile IPv6, Gwon II, and 3G UMTS specifications is proper; (4) the ‘330 patent background section is proper; (5) Proctor's written description opinions are properly supported under Daubert; (6) Proctor's discussion of Claim 7 of the ‘417 Patent is proper; and (7) highlighted portions of Proctor's report are not properly the subject of Mobility's Motion (Dkt. #108). The Court now addresses Verizon and Mobility Workx' respective Motions.

         LEGAL STANDARD

         Federal Rule of Evidence 702 provides for the admission of expert testimony that assists the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court instructed courts to function as gatekeepers and determine whether expert testimony should be presented to the jury. 509 U.S. 579, 590-93 (1993). Courts act as gatekeepers of expert testimony “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.” Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

         The party offering the expert's testimony has the burden to prove that: (1) the expert is qualified; (2) the testimony is relevant to an issue in the case; and (3) the testimony is reliable. Daubert, 509 U.S. at 590-91. A proffered expert witness is qualified to testify by virtue of his or her “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. Moreover, to be admissible, expert testimony must be “not only relevant but reliable.” Daubert, 509 U.S. at 589. “This gate-keeping obligation applies to all types of expert testimony, not just scientific testimony.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) (citing Kuhmo, 526 U.S. at 147).

         In deciding whether to admit or exclude expert testimony, the Court should consider numerous factors. Daubert, 509 U.S. at 594. In Daubert, the Supreme Court offered the following, non-exclusive list of factors that courts may use when evaluating the reliability of expert testimony: (1) whether the expert's theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the challenged method; and (4) whether the theory or technique is generally accepted in the relevant scientific community. Id. at 593-94; Pipitone, 288 F.3d at 244. When evaluating Daubert challenges, courts focus “on [the experts'] principles and methodology, not on the conclusions that [the experts] generate.” Daubert, 509 U.S. at 595.

         The Daubert factors are not “a definitive checklist or test.” Id. at 593. As the Supreme Court has emphasized, the Daubert framework is “a flexible one.” Id. at 594. The test for determining reliability can adapt to the particular circumstances underlying the testimony at issue. Kuhmo, 526 U.S. at 152. Accordingly, the decision to allow or exclude experts from testifying under Daubert is committed to the sound discretion of the district court. St. Martin v. Mobil Expl. & Producing U.S., Inc., 224 F.3d 402, 405 (5th Cir. 2000) (citations omitted).

         ANALYSIS

         At the outset, the Court notes that both parties have raised arguments surrounding the timeliness of these disputes. Mobility Workx and Verizon each argue that the other party has waived any arguments surrounding the expertise, methodology, reliability, or conclusions of the other party's experts. While each party is required to adhere to the Court's Scheduling Order, equity and the Court's gatekeeping role under Daubert also factor in to whether the Court will consider arguably dilatory claims. To be sure, it is axiomatic that the Court serves as a gatekeeper over all expert testimony to ensure a fair judicial process. See Kuhmo Tire Co., 526 U.S. at 152. Therefore, irrespective of Verizon and Mobility Workx' disputes over a potential waiver of claims, the Court finds that it must exercise its gatekeeping authority. The decision of the Court ensures that the judicial proceeding is equitable. Each party claims that the other party's arguments are waived yet asks for its own arguments to be preserved. By hearing all arguments, and foregoing the deadlines set out in the Scheduling Order in this instance, [1] each party receives the benefit of having its own argument heard while facing the reality that the other party's countervailing arguments must also receive the same leniency. Because this is the most equitable manner for proceeding in this instance, the Court continues, without addressing Verizon and Mobility Workx' waiver arguments, to the merits.

         As previously aforementioned, there are four pending disputes. Those disputes include: (1) Defendant's Motion to Strike and Exclude Certain Portions of the Expert Testimony of Sukumaran Nair, Ph.D. (Dkt. #99); (2) Defendant's Motion to Strike the Expert Disclosure of Dr. Sumi Helal and Dr. Edwin Hernandez (Dkt. #101); (3) Defendant Verizon Wireless's Motion to Exclude the Opinion of Dr. Edwin A. Hernandez (Dkt. #102); and (4) Plaintiff Mobility Workx, LLC's Motion to Strike Portions of James Proctor's Expert Report (Dkt. #104). The Court addresses each in turn.

         I. Defendant's Motion to Strike and Exclude Certain Portions of the Expert Testimony of Sukumaran Nair, Ph.D. (Dkt. #99);

         Verizon first filed a Motion to Strike and Exclude Certain Portions of the Expert Testimony of Sukumaran Nair, Ph.D. (Dkt. #99). Verizon claims that Dr. Nair's report contains new infringement theories that were absent from Mobility Workx' Infringement Contentions (“ICs”). Verizon also claims that certain opinions of Dr. Nair “are incomplete, conclusory, and/or conflicting with the Court's claim construction” (Dkt. #99). As a result of these contentions, Verizon requests that any new theories and unsupported opinions be stricken and/or excluded under Daubert (Dkt. #99). Mobility Workx opposes Verizon's Motion and claims that Dr. Nair does not introduce any new theories of infringement and, further, that Dr. Nair's opinions comply with Daubert (Dkt. #111). The Court first addresses Verizon's claim that Dr. Nair has inserted new theories absent from Mobility Workx' Infringement Contentions. Following that discussion, the Court will then address Verizon's Daubert arguments.

         a. Theories of Infringement

         Under the Local Patent Rules, a party asserting infringement must “serve infringement contentions on each defending party.” ROY-G-BIV Corp. v. ABB, Ltd., 63 F.Supp.3d 690, 699 (E.D. Tex. Aug. 8, 2014) (discussing U.S. Dist. Ct. Rules E.D. Tex., Patent Rule 3-1). These contentions must “set forth specific theories of infringement at the outset of the case.” Orion IP, LLC v. Staples, Inc., 407 F.Supp.2d 815, 817 (E.D. Tex. Jan. 9, 2006). “Expert infringements reports may not introduce theories not previously set forth in infringement contentions.” ROY-G-BIV Corp., 63 F.Supp.3d at 699; see also Realtime Data, LLC v. NetApp, Inc., 2017 WL 4844254, at *1 (E.D. Tex. Oct. 26, 2017) (quoting the same language); Godo Kaisha IP Bridge 1 v. Broadcom Limited, 2017 WL 2869331, at *1 (E.D. Tex. Apr. 27, 2017) (quoting the same language); Core Wireless Licensing, S.A.R.L. v. LG Electronics, Inc., 2016 WL 3655302, at *1 (E.D. Tex. Mar. 21, 2016) (quoting the same language); SSL Services, LLC v. Cisco Systems, Inc., 2016 WL 727673 at, *7 (E.D. Tex. Feb. 24, 2016); Better Mouse Company, LLC v. SteelSeries APS, 2016 WL 7665892, at *1 (E.D. Tex. Jan. 8, 2016) (stating that the purpose of the Local Patent Rules is “to require the parties to crystallize their theories of the case early in the litigation and to adhere to those theories once they have been disclosed.” O2 Micro Int'l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1364 (Fed. Cir. 2006)). As ROY-G-BIV Corp. continues, however:

The scope of infringement contentions and expert reports are not [] coextensive. Infringement contentions need not disclose “specific evidence nor do they require a plaintiff to prove its infringement case, ” EON Corp. IP Holdings, LLC v. Sensus USA Inc., No. 6:09-cv-116, 2010 WL 346218, *2 (E.D. Tex. Jan. 21, 2010), whereas expert reports must include a complete statement of the expert's opinions, the basis and reasons for them, and any data or other information considered when forming them. Fed.R.Civ.P. 26(a)(2)(B).

Id. at 699. A degree of generality is permitted because “[i]nfringement contentions are not intended to act as a forum for argument about the substantive issues but rather serve the purpose of providing notice to the Defendants of infringement theories beyond the mere language of the patent claim.” Motion Games, LLC v. Nintendo Co., 2015 WL 1774448, at *4 (E.D. Tex. Apr. 16, 2015) (citing Linex Techs. Inc. v. Belkin Int'l, Inc., 628 F.Supp.2d 703, 713 (E.D. Tex. Sept. 19, 2008)).

         Verizon argues that Dr. Nair improperly introduces a series of new theories of infringement that are absent from Mobility Workx' Infringement Contentions. Those allegedly new theories include, as to the ‘417 Patent: “(1) a new theory of induced infringement, (2) what serves as the ‘home agent,' (3) what serves as the ‘foreign agent,' and (4) alleged new theories related to Claim Elements [417.7c] and [417.d]” (Dkt. #111) (summarizing the arguments made in Dkt. #99). As to the ‘330 Patent, the allegedly new theories include: “(1) a theory of inducement, (2) a doctrine of equivalents argument, and (3) accusations against previously undisclosed manufacturers and products” (Dkt. #111) (summarizing the arguments made in Dkt. #99).

         Mobility Workx' response is dedicated to factual support surrounding its new theories, rather than any response that these theories were already included in its Infringement Contentions or are not prejudicial to Verizon because Verizon had notice of the theories. Such arguments do not persuade the Court that these new theories should now be introduced. See ROY-G-BIV, 63 F.Supp.3d at 699. With that being said, the Court is hesitant to strike allegedly new theories without adequate argument. Thus, the parties are hereby on notice that the arguments surrounding these purportedly new theories will be taken up at the final pretrial conference. Those theories to be taken up include: (1) as to the ‘417 Patent, the theory of induced infringement, what serves as a home agent, what serves as the foreign agent, and the new theories related to Claim Element 417.7c and 417.d; and (2) as to the ‘330 Patent, the theory of inducement, doctrine of equivalents argument, and accusations surrounding previously undisclosed manufacturers and products.

         b. Daubert Challenge

         In determining the admissibility of expert testimony, proper deference should be accorded to the role of the jury “as the arbiter of disputes between conflicting opinions.” U.S. v. 14.38 Acres of Land, More or Less Situated in Leflore County, State of Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (citing Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)). As the Supreme Court stated in Daubert, any “absurd and irrational pseudoscientific assertions” can be properly remedied by the “capabilities of the jury and of the adversary system generally.” Daubert, 509 U.S. at 595-96. It is for this reason that the Court may not judge the expert conclusions themselves. See Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see also Wallis v. Hornbeck Offshore Operators, 2014 WL 3809743, at *1 (E.D. La. Aug. 1, 2014) (“As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight of the evidence rather than its admissibility, and should be left for the finder of fact.”). Rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” See Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)); see also Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (“It is the role of the adversarial system, not the court, to highlight weak evidence.”). Put simply, a court “is not concerned with whether the opinion is correct, but whether the preponderance of the evidence establishes that the opinion is reliable.” Wallis, 2014 WL 3809743 at *1 (citing Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012)).

         Here, Verizon argues that “[f]or every limitation of the asserted claims of the '417 Patent [and ‘330 Patent], Dr. Nair's analysis is incomplete, based on insufficient evidence, and/or outright conclusory” (Dkt. #99). Verizon's arguments are as follows:

         • ‘417 Patent

• 417.1a: “Dr. Nair boldly alleges that ‘Proxy Mobile IPv6 is part of the requirement set by Verizon for all LTE products,' but his only basis is a quote from a draft document dated February 2019 relating only to Verizon's LTE Band 13 network access . . . .” This allegation, according to Verizon, is an “extreme generalization of Verizon's entire LTE network . . . based on a very recent document about one particular segment . . . .”
• 417.1c & 417.1d: “Dr. Nair provides an incomplete analysis for his identification of the P-GWas the ‘home agent' and the ‘eNodeB/S-GW component by itself or in conjunction with the S-GW' as the ‘foreign agent.' The Court construed ‘foreign agent' as ‘a network node on a visited network that assists the mobile node in receiving communications,' yet he fails to explain what aspect of Verizon's LTE network satisfies the required claim element of a ‘visited network.' Similarly, he defines a ‘home agent' as ‘the agent that resides in the home network,' but fails to identify what satisfies the required claim element of a ‘home network.'. . . . Further, Dr. Nair tries to redefine ‘visited network' on the basis of IP addresses and tunneling, but the Court specifically rejected Mobility's attempt to do the same during claim construction.”
• 417.1e: “Dr. Nair briefly identifies certain system messages but provides no analysis whatsoever as to how the future location of a mobile node is ‘predicted' and why the alleged foreign agent(s) identified are proximate to that ‘predicted future location.'
• 417.1f: “Claim Element [417.1f] requires a ‘ghost-mobile node that creates replica IP messages . . . triggering signals based on a predicted physical location of such mobile node or distance with relation to the at least one foreign agent,' but Dr. Nair fails to address these limitations in his analysis.”
• 417.4: “Dr. Nair mistakenly recites Claim Element [417.1f] and leaps to the conclusion that ‘Verizon infringes Claim 4.' In that leap, he fails to provide any analysis of Claim 4, which requires ‘the at least one ghost mobile node is a proxy element for the at least one foreign agent and the at least one mobile node, the at least one ghost-mobile node triggering registration based on a distance to a foreign agent by relaying security and shared secrets from a mobile node, and at least one advertisement message from a foreign agent in a vicinity of the ghost-mobile node,' especially the emphasized elements.”
• 417.7b: “Dr. Nair cites to the same Verizon-branded document discussed above to state that ‘[t]he location information or position [of a mobile node] is copied over to the eNodeB by Verizon. This is done by the Measurement Report and it contains device's location.' As stated earlier, the information cited from this document is not representative of Verizon's LTE network as a whole, and Dr. Nair relies on information related to ‘Minimization of Drive Test,' which is directed to testing and not for regular use of Verizon's LTE network.”
• 417.7c: “Dr. Nair provides newly introduced infringement theories, as discussed above, but for each one he fails to provide an explanation of how it ‘determin[es] a distance, in the ghost mobile node . . ., to a closest foreign agent with which the mobile node can complete a handover' as required.”
• 417.7d: “Dr. Nair opines that ‘this elementi [sic] is met by Verizon's X2 handover and CSG cells/eNodeBs,' but his cursory analysis only discusses a particular handover process involving CSG cells, which is not accused in this case.” • 417.7e: “Dr. Nair simply restates the claim language-'upon completion of the handover a registration is updated in the mobile node'-and provides no further analysis.”
• Finally, Dr. Nair alleges that ‘Verizon actively induces its customers and end users (who use the Verizon LTE Network) to infringe,' but no analysis of induced infringement is present in the entirety of Dr. Nair's report for the '417 Patent.”

         • ‘330 Patent

• 330.1b: “Dr. Nair fails to provide any analysis regarding whether any of the alleged wireless network nodes that he has identified are ‘fixedly-located,' as required by all Asserted Claims.”
• 330.1c: “Dr. Nair fails to provide any allegations or analysis as to how the connection between the mobile node and the wireless network nodes is wireless. Rather than provide any analysis based on documentary evidence, Dr. Nair makes conclusory allegations and then jumps to conclusions, such as, wireless tests are ‘the most effective way to test a phone' and therefore the mobile node is ‘configured to wirelessly communicate with the wireless network nodes.' But nowhere does Dr. Nair provide any analysis of a specific mobile node being configured to wirelessly communicate with any specific wireless network node, nor identify any accused equipment that allegedly implements that wireless network node. Rather, Dr. Nair generally alleges in the abstract, without support, that unidentified mobile nodes are ‘configured to wirelessly communicate with the [unidentified] wireless network nodes.' This amounts to a bare recitation of the claim language and should be stricken for failure to adequately support his opinions.”
• 330.1d: Dr. Nair merely points to various uses of the term ‘network emulator' in various documents. But, again, Dr. Nair fails to examine how any of these references to ‘network emulators' satisfy other limitations of this element, including how those emulators might be ‘communicatively linked' to the wireless network nodes, as required by the claim language. Indeed, for each limitation, Dr. Nair fails to provide an analysis of how any of the identified equipment is used in combination to form the ‘system' that, as a whole, allegedly infringes Claim 1. Rather, Dr. Nair's ‘analysis' comprises scattershot references to the terms in the limitations, without any discussion as to the relevance of those terms.
• 330.1e: “Dr. Nair again simply identifies various pieces of equipment as the ‘controller' without analysis. . . . Dr. Nair does not identify how or whether the alleged controllers infringe the various limitations of Element [330.1e], such as requiring that the controller simulate mobile communication conditions ‘without changing operating parameters' of the mobile node. Dr. Nair's conclusory allegations to the contrary should be stricken.

(Dkt. #99) (internal citations omitted). Mobility Workx counters with a brief, two-paragraph response which claims that: (1) Verizon falsely claims that “‘both parties agree Element [417.1a] is a limited preamble, '” but “Mobility never agreed to that, and the Court certainly has not construed it as limiting”; (2) the “draft documented dated February 2019” has been authenticated by Verizon's Rule 30(b)(6) witness; (3) “Verizon fails to address the fact that they are in possession of all 37 versions of this document but have failed to produce any single verions of this document in discovery . . .”; (4) Verizon “also wrongly claim[s] that Dr. Nair makes an extreme generalization based upon the supposedly inaccurate new document when in fact Dr. Nair cited to it as an example”; and (5) “[a]dditional argument with respect to the merits of defendants motion [will] be provided in connection with the opposition to the motion for summary judgment with supporting declarations” (Dkt. #111).

         At the outset, the Court notes that Verizon is correct that the Local Rules state that “[t]he response and any briefing shall be contained in one document . . . A party's failure to oppose a motion in this manner prescribed herein creates a presumption that the party does not controvert the facts set out by movant and has no evidence to offer in opposition to the motion” (Dkt. #117) (citing L.R. CV-7(d)). With that being said, the Court has also already noted that it must exercise its gatekeeping role and allow for an equitable judicial proceeding. Verizon has not persuaded the Court that Dr. Nair's opinions should be forfeited in this case. Verizon's arguments are better characterized as disputes over weight and credibility than admissibility. See Wallis, 2014 WL 3809743, at *1. If Dr. Nair's claims are as unsupported or conclusory as Verizon claims, then “vigorous cross examination” will reveal that. See Daubert 509 U.S. at 596. Indeed, cross-examination, rather than exclusion, is more a more appropriate means to establish the weight of the evidence, for it is not the role of the Court to weigh the strength of Dr. Nair's conclusions. See Primrose Operating Co., 382 F.3d at 562 (5th Cir. 2004) (“It is the role of the adversarial system, not the court, to highlight weak evidence.”). Thus, the Court finds that these disputes are better resolved by the jury and accordingly denies Verizon's Motion.

         II. Defendant's Motion to Strike the Expert Disclosure of Dr. Sumi Helal and Dr. Edwin Hernandez (Dkt. #101);

         Federal Rule of Civil Procedure 26(a)(2)(B) states:

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

FED. R. CIV. P. 26(a)(2)(B) (emphasis added). Federal Rule of Civil Procedure 26(a)(2)(C) states:

         (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence ...

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