United States District Court, D. Delaware
DELAWARE DISPLAY GROUP LLC and INNOVATIVE DISPLAY TECHNOLOGIES LLC, Plaintiffs,
VIZIO, INC., Defendant.
E. Farnan, Esq., Michael J. Farnan, Esq., FARNAN LLP,
Wilmington, Delaware; Jeffrey R. Bragalone, Esq., Patrick J.
Conroy, Esq., Justin B. Kimble, Esq. (argued), Daniel F.
Olejko, Esq., T. William Kennedy, Jr., Esq. (argued), James
R. Perkins, Esq. (argued), BRAGALONE & CONROY LLP,
Attorneys for Plaintiffs Pilar G. Kraman, Esq., YOUNG,
CONAWAY, STARGATT & TAYLOR, Wilmington, Delaware; Jason
C. Lo, Esq. (argued), Raymond A. LaMagna, Esq. (argued),
GIBSON, DUNN & CRUTCHER LLP, Los Angeles, California.
Attorneys for Defendant
ANDREWS, U.S. DISTRICT JUDGE.
Plaintiffs are Delaware Display Group LLC and Innovative
Display Technologies LLC. The Defendant is VIZIO, Inc. On
January 10, 2017, the Plaintiffs and Defendant submitted a
Joint Status Report identifying motions that require
decision. (D.I. 364). This memorandum addresses the following
summary judgment motions identified in that Report: (1)
Defendant's Motion for Summary Judgment of Non-Enablement
and Written Description (D.I. 274); (2) Defendant's
Motion to Exclude Expert Testimony of Dr. Frederic Kahn on
the Issues of Non-Enablement and Written Description (D.I.
275); (3) Defendant's Motion for Summary Judgment of
Non-Infringement of U.S. Patent No. 7, 537, 370 (D.I. 278);
(4) Plaintiffs' Motion for Partial Summary Judgment (on
VIZIO's § 112 Enablement/Written Description
Defense) (D.I. 280); (5) Plaintiffs' Motion to Strike
VIZIO's Opinions Related to Alleged Non-Infringing
Alternatives (D.I. 284); and (6) Plaintiffs' Motion to
Exclude Testimony Relating to the Expert Reports of Richard
A. Flasck (D.I. 287). The parties fully briefed these
motions. I held oral argument on February 13, 2017. (D.I. 379
Motion for Summary Judgment
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The moving party has the initial burden
of proving the absence of a genuinely disputed material fact
relative to the claims in question. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986). Material facts are
those "that could affect the outcome" of the
proceeding, and "a dispute about a material fact is
'genuine' if the evidence is sufficient to permit a
reasonable jury to return a verdict for the non-moving
party." Lamont v. New Jersey, 637 F.3d 177, 181
(3d Cir. 2011). The burden on the moving party may be
discharged by pointing out to the district court that there
is an absence of evidence supporting the non-moving
party's case. Celotex, 477 U.S. at 323.
burden then shifts to the non-movant to demonstrate the
existence of a genuine issue for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986); Williams v. Borough of West Chester, Pa.,
891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving party
asserting that a fact is genuinely disputed must support such
an assertion by: "(A) citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials; or (B) showing that the
materials cited [by the opposing party] do not establish the
absence ... of a genuine dispute ...." Fed.R.Civ.P.
determining whether a genuine issue of material fact exists,
the court must view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in
that party's favor. Scott v. Harris, 550 U.S.
372, 380 (2007); Wishkin v. Potter, 476 F.3d 180,
184 (3d Cir. 2007). A dispute is "genuine" only if
the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson, 477 U.S.
at 247-49. If the non-moving party fails to make a sufficient
showing on an essential element of its case with respect to
which it has the burden of proof, the moving party is
entitled to judgment as a matter of law. See Celotex
Corp., 477 U.S. at 322.
Motion to Strike
Rule of Evidence 702 sets out the requirements for expert
witness testimony, stating that:
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.
Evid. 702. The Third Circuit has explained:
Rule 702 embodies a trilogy of restrictions on expert
testimony: qualification, reliability and fit. Qualification
refers to the requirement that the witness possess
specialized expertise. We have interpreted this requirement
liberally, holding that "a broad range of knowledge,
skills, and training qualify an expert." Secondly, the
testimony must be reliable; it "must be based on the
'methods and procedures of science' rather than on
'subjective belief or unsupported speculation'; the
expert must have 'good grounds' for his o[r] her
belief. In sum, Daubert holds that an inquiry into
the reliability of scientific evidence under Rule 702
requires a determination as to its scientific validity."
Finally, Rule 702 requires that the expert testimony must fit
the issues in the case. In other words, the expert's
testimony must be relevant for the purposes of the case and
must assist the trier of fact. The Supreme Court explained in
Daubert that "Rule 702's
'helpfulness' standard requires a valid scientific
connection to the pertinent inquiry as a precondition to
By means of a so-called "Daubert hearing,
" the district court acts as a gatekeeper, preventing
opinion testimony that does not meet the requirements of
qualification, reliability and fit from reaching the jury.
See Daubert ("Faced with a proffer of expert
scientific testimony, then, the trial judge must determine at
the outset, pursuant to Rule 104(a) [of the Federal Rules of
Evidence] whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue.").
ex rel. Estate of Schneider v. Fried, 320 F.3d 396,
404-05 (3d Cir. 2003) (footnote and internal citations
omitted). The proponent of expert testimony must
"demonstrate by a preponderance of evidence that the
[expert's] opinions are reliable." In re Paoli
R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994).