United States District Court, D. Delaware
moved to strike various portions of the expert opinions of
two of Defendant's expert witnesses. (D.I. 187). The
briefing adequately sets forth the arguments. (D.I. 188, 225,
246). There is no need for oral argument.
damages expert is Michael Tate. Plaintiffs move to exclude
his opinion on what the royalty base should be (in relation
to the '294 patent). Plaintiffs argue Mr. Tate bases his
opinions on his own conclusions about which of
Defendant's products are infringing. Mr. Tate is a
damages expert. He will not be allowed to render opinions at
trial on which products infringe and which do not. That is a
question for technical experts. If Defendant's technical
expert offers opinions that provide a factual basis for
concluding that some of Defendant's products infringe and
others do not, Mr. Tate will be allowed to testify consistent
with the opinions. In particular, if Defendant's
technical expert testifies that there can be no infringement
unless there are at least four of Defendant's products,
Mr. Tate may have a basis for his calculation of a royalty
base based on that assumption. In any event, I do not view
this issue as a Daubert issue. I view it as a
relevance issue, and I will rule on objections based on it,
as necessary, at trial. On this issue, the motion to strike
state that Mr. Tate has offered opinions on copying.
Defendant counters that Mr. Tate "will not provide an
opinion that D&M copied Sonos in this case." (D.I.
225, p.8). Defendant adds a further paragraph in its briefing
after making the above representation. I am not sure what its
point in the further paragraph is, even though I accept
literally what it says, which is, the parties have
"similar technology" and that this may be relevant
to the so-called KPMG study. I cannot at this point tell what
is relevant to what, and I do not see the need to strike any
of Mr. Tate's opinions that include the word
"copy" or some variant thereof. Nevertheless,
absent my express permission, Mr. Tate is not to testify to
copying or to imply copying during his trial
testimony. On this issue, the motion to strike is
DISMISSED as moot in light of
state that Dr. Kevin Almeroth, Defendant's technical
expert, has offered opinions based on his claim constructions
of terms that would otherwise be afforded their plain
meaning. These arguments relate to the "group"
(D.I. 188, pp. 12-13) or "zone" (D.I. 225, p. 13)
terms meaning a "virtual device" and to the
"device control signal." On "group" or
"zone, " Defendant's response makes clear that
Dr. Almeroth has done claim construction. Dr. Almeroth cites
the specification and prosecution history as providing a
basis for his meanings. (See id, pp. 13-14). This is
claim construction. See EMC Corp. v. Pure Storage,
Inc., 2016 WL 775742, *3-4 (D.Del. Feb. 25, 2016). On
the "device control signal, " Defendant says Dr.
Almeroth is not using a claim construction that I already
rejected, as stated by Plaintiffs. Instead, he is doing claim
construction on "providing." (D.I. 225, p.16).
Plaintiffs dispute Defendant's assertion that Dr.
Almeroth is accepting the Court's construction on
"device control signal." The parties agree that my
claim construction relevant to "device control
signal" (D.I. 137, pp. 21 -23; D.I. 141, p.4) means
that, in order to meet the claims, device control signals
must be provided to at least two devices, one of which can be
the group leader. (D.I. 188, p.13; D.I. 225, p.15; D.I. 246,
p.9). The parties cite a limited number of paragraphs in Dr.
Almeroth's rebuttal report for their arguments that he
did or did not follow the claim construction. (D.I. 188,
p.13, citing D.I. 189-1, Exh. 5, ¶278; D.I. 225, p. 15,
citing D.I. 189-1, Exh. 5, ¶¶277-79; D.I. 246, p.8,
citing D.I. 189-1, Exh. 5, ¶ 275).
Almeroth cannot do claim construction. Only the court can.
And, as ordered at the recent oral argument, now that these
claim construction disputes have been identified, I have set
a briefing schedule (D.I. 273), and I will resolve the
disputes. Thus, I will STRIKE the two identified claim
"providing"). Whether I strike any other opinions
will depend on what I do by way of claim construction. If I
reach the same conclusions that Dr. Almeroth reached,
presumably his substantive testimony will remain. If I reach
different conclusions, he will not be allowed to provide
testimony inconsistent with those opinions. When I have done
claim construction, the parties should promptly submit a
joint status report advising how it impacts Dr.
noted, the parties have cited to four paragraphs (D.I. 189-1,
Exh. 5, ¶¶ 275, 277-79) in support of their
arguments that Dr. Almeroth is, or is not, being consistent
with what I have already done in claim construction. In
particular, the parties dispute whether Dr. Almeroth has been
faithful to the claim construction for "device control
signal." I do not think Dr. Almeroth's report is
contrary to my claim construction to date, but I do note that
those paragraphs, particularly ¶277, contain substantial
additional claim construction, which is being addressed in
the supplemental briefing. (E.g., D.I. 280). Thus,
while some of what is in the four paragraphs may be
objectionable, it is not objectionable for failure to follow
the claim construction to date.
last issue raised relates to Dr. Almeroth's reliance on
information provided to him by a Sonos employee named Nick
Millington. (D.I. 188, p. 14). Plaintiffs state that the
information is not sufficiently described by Dr. Almeroth. In
their opening brief, Plaintiffs cite twenty-four paragraphs
of his expert report as examples, but with no real analysis
other than stating that it is insufficient for him to say his
opinions are "based on" conversations with Mr.
Millington. (Id.). Plaintiffs appear to have noticed
Dr. Almeroth's deposition for February 16, 2018. (D.I.
265). I expect they will then have the opportunity to explore
the bases for Dr. Almeroth's opinions. Defendant also
represents that it expects to call Mr. Millington as a trial
witness. (D.I. 225, p.2O). Defendant cites the same
twenty-four paragraphs, but actually quote the first of them
in full in its brief. (Id., p. 17). The quoted
paragraph discloses the subject matter of the conversation
sufficiently. Perhaps Plaintiffs recognize this, as, in the
reply brief, Plaintiffs' string cite is reduced to eleven
of the previously cited twenty-four paragraphs, and does not
include the one that Defendant quoted in full. (D.I. 246,
p.9). In the reply brief, Plaintiffs choose to highlight two
of the now-eleven paragraphs. One of the two, ¶ 473,
states, "[B]ased on my review of Sonos's internal
documents and source code as well as my discussions with Mr.
Millington, it is my understanding that a Sonos System does
not use 'embedded metadata' for any audio content
received from a third-party music service." (D.I. 189-1,
Exh. 5, p.194). I do not see any problem here. It is pretty
clear what Mr. Millington told Dr. Almeroth. If Plaintiffs
want to cross-examine Mr. Millington or Dr. Almeroth or both
on this paragraph, they know what to ask, either at
deposition or at trial. I do not see improper reliance on
hearsay evidence.Thus, on this last issue, the motion to
strike is DENIED.
I do not see testimony about
"similar technology" as implying copying, but
Defendant needs to exercise caution, because if I have to
declare a mistrial (or later grant a new trial) because of
Mr. Tate's testimony, Defendant would be required to pay
the costs of a retrial.
 In the reply brief, Plaintiffs make
additional arguments not made in the opening brief, stating
that the source code and/or internal documentation is
insufficiently identified, and seeking alternative relief of
another deposition of Mr. Millington. (D.I. 246, pp.9-10).