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Parallel Networks Licensing LLC v. Microsoft Corp.

United States District Court, D. Delaware

February 22, 2017


          Adam W. Poff, Esq., Pilar G. Kraman, Esq., Young Conaway Stargatt & Taylor, Counsel for Plaintiffs

          Of Counsel: Douglas A. Cawley, Esq., Christopher T. Bovenkamp, Esq., Eric S.

          Hansen, Esq., Avery R. Williams, Esq., Justin W. Allen, Esq., McKool Smith, PC, Angela M. Vorpahl, Esq., McKool Smith, PC, John B. Campbell, Esq., Leah Bhimani Buratti, Esq., Kevin P. Hess, Esq., McKool Smith, PC,

          Martina Tyreus Hufhal, Esq., Nitika Gupta, Esq., Ronald P. Golden, III, Esq., Fish & Richardson PC, Juanita R. Brooks, Esq., Jason W. Wolff, Esq., Joanna M. Fuller, Esq., Fish & Richardson PC, Stephen A. Marshall, Esq., Fish & Richardson PC, Counsel for Defendants


          JORDAN, Circuit Judge

         I. Background

         Microsoft has filed a motion in this patent infringement case to exclude evidence related to a survey conducted by Dr. Bruce Isaacson. (Docket Item ("D.L") 281.) Based on the briefing and oral argument, I will grant the motion.

         Plaintiff Parallel Networks filed this action on December 20, 2013, alleging that Microsoft infringed U.S. Patent Nos. 5, 894, 554 ("the '554 patent") and 6, 415, 335 ("the '335 patent"). (D.L 1.) The asserted claims generally disclose methods for load-balancing dynamic web requests across multiple page-servers in an Internet-based system.[1]

         Parallel Networks accuses Microsoft of infringing, both directly and indirectly, six independent claims and twelve dependent claims of the patents-in-suit. (D.I. 288 at 9 n.4.) Parallel Networks' theory of indirect infringement focuses on two accused products - (1) Microsoft's Windows Server, when running with Internet Information Services (IIS), Application Request Routing (ARR), and URL Rewrite, and (2) SharePoint 2013, when used with Request Manager. (D.I. 312 at 3.) In order to support its theory of indirect infringement, Parallel Networks hired Dr. Bruce Isaacson to conduct a survey that sought to determine how Microsoft customers use the accused products. (D.L 283 Ex. 1 ("Isaacson Report").) After reviewing Dr. Isaacson's survey and the accompanying report, Microsoft filed this motion, arguing that the survey and all testimony that relies on the survey should be deemed inadmissible under Federal Rule of Evidence 702, [2]

         II. Legal Standards

         The admissibility of expert testimony is governed by Federal Rule of Evidence 702. Under that rule, expert testimony is admissible only if it "will help the trier of fact to understand the evidence[, ] ... is based on sufficient facts or data[, ] ... is the product of reliable principles and methods[, ] ... [and] reliably applie[s] the principles and methods to the facts of the case." Fed.R.Evid. 702. The role of the district court is to serve as a "gatekeeper" - to protect the jury from evidence that is unreliable, confusing, or unduly prejudicial. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 145, 147-48 (1999); Daubertv. MerrellDow Pharms., Inc., 509 U.S. 579, 589-91 (1993). In order for expert evidence to be reliable, there must be an adequate "fit" between the offered evidence and the subject matter at issue in the case. Daubert, 509 U.S. at 591. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Id. at 591 (quoting 3 Weinstein & Berger ¶ 702). Similarly, expert conclusions that do not have an adequate analytical connection to the proffered evidence are excludable. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) ("A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."); Daubert, 509 U.S. at 591 (explaining that a study of the phases of the moon may help the trier of fact determine whether a certain night was dark, but that it "will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night").

         Pursuant to Federal Rule of Evidence 104, the burden of proof with respect to reliability under Rule 702 lies on the party attempting to offer the expert evidence. See Fed. R. Evid. 702 advisory committee's note ("[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence." (citing Bourjaily v. United States, 483 U.S. 171 (1987))).

         III. Discussion

         The standards articulated in Daubert and its progeny apply to survey evidence, e.g., Vita-Mix Corp. v. Basic Holding, Inc.,581 F.3d 1317, 1326 (Fed. Cir. 2009); Citizens Fin. Grp., Inc. v. Citizens Nat. Bank of Evans City,383 F.3d 110, 118 (3d Cir. 2004), and the Isaacson survey and accompanying expert report fail to meet those standards. Parallel Networks has not shown, by a preponderance of the evidence, that the survey is admissible under Rule 702. Instead, it appears that the ...

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