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Princeton Digital Image Corp. v. Office Depot Inc.

United States District Court, D. Delaware

August 1, 2017

PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
OFFICE DEPOT INC., Defendant. PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
J.C. PENNEY COMPANY, INC., Defendant. PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
QVC INC., Defendant. PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
SEARS HOLDINGS COMPANY, Defendant. PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
LIMITED BRANDS, INC., Defendant. PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
GAP INC., Defendant. PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
WILLIAMS-SONOMA INC., Defendant. PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
COSTCO WHOLESALE CORP., Defendant. PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff,
v.
NORDSTROM.COM LLC, NORDSTROM.COM INC., and NORDSTROM INC. Defendants.

          Sean T. O'Kelly, George Pazuniak, and Daniel P. Murray, O'KELL Y ERNST & JOYCE, LLC, Wilmington, DE Attorneys for Plaintiff.

          Kelly E. Farnan, RICHARDS LAYTON & FINGER, Wilmington, DE

          Tara D. Elliott, Rachel Weiner Cohen, and Brittany Amadi, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, DC Attorneys for Intervenor Adobe Systems Incorporated.

          MEMORANDUM OPINION

          STARK, U.S. District Judge.

         On June 6, 2011, Adobe Systems Incorporated ("Adobe") and Princeton Digital Image Corporation ("PDIC") entered into a licensing agreement concerning U.S. Patent No. 4, 813, 056, whereby PDIC agreed not to sue Adobe or its licensees, customers, and end users on any of PDIC's patents. (See C.A. No. 13-239-LPS D.I. 196 Ex. I)[1] In 2013, PDIC brought numerous suits against internet retailers ("Defendants") for infringement of the '056 patent, based on the encoding of JPEG images on their websites. (E.g., D.I. 1) A number of the defendants claimed to be Adobe's licensed customers and sought indemnity and defense from Adobe. As a result, Adobe moved to intervene in 2014. (D.I. 11) In May 2015, the Court granted Adobe's motion, and Adobe filed a complaint in intervention, alleging, among other things, that PDIC breached its contract with Adobe by suing Adobe's customers. (D.I. 47) Subsequently, PDIC dismissed with prejudice the underlying patent infringement claims, leaving only the claims between Adobe and PDIC. (E.g., D.I. 56)

         Presently before the Court are PDIC's motion to exclude certain expert testimony and motion for summary judgment. A jury trial is scheduled to begin August 21, 2017.

         For the reasons stated below, the Court will deny PDIC's motion to exclude expert opinions and grant in part and deny in part PDIC's motion for summary judgment.

         I. LEGAL STANDARDS

         A. Daubert Motion

         In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the Supreme Court explained that Federal Rule of Evidence 702 creates "a gatekeeping role for the [trial] judge" in order to "ensur[e] that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Rule 702(a) requires that expert testimony "help the trier of fact to understand the evidence or to determine a fact in issue." Expert testimony is admissible only if "the testimony is based on sufficient facts or data, " "the testimony is the product of reliable principles and methods, " and "the expert has reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 7O2(b)-(d).

         There are three distinct requirements for proper expert testimony: (1) the expert must be qualified; (2) the opinion must be reliable; and (3) the expert's opinion must relate to the facts. See Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000).

         B. Summary Judgment

         Under Rule 56(a) of the Federal Rules of Civil Procedure, "[t]he 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." The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). An assertion that a fact cannot be - or, alternatively, is - genuinely disputed must be supported either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         To defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (stating party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks omitted). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating entry of summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). Thus, the "mere existence of a scintilla of evidence" in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment; there must be "evidence on which the jury could reasonably find" for the nonmoving party. Anderson, 477 U.S. at 252.

         II. DISCUSSION

         A. PDIC's Motion to Exclude Certain Testimony of Adobe's Experts

         PDIC moves to exclude certain opinions of Dr. Andrew B. Lippman, Adobe's expert on liability, and Dr. Stephen L. Becker, Adobe's damages expert. PDIC contends that both experts' opinions improperly rely on letters and declarations that are inadmissible hearsay. PDIC raises additional challenges specific to each expert, contending that Dr. Lippman should not be allowed to testify about a Wayback Machine investigation, Defendants' activities, or Scene7, and that Dr. Becker should not be permitted to testify about Defendants' activities or restitution. The Court disagrees with each of PDIC's positions and will deny PDIC's motion.[2]

         1. Reliance on ...


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