United States District Court, D. Delaware
before the Court are seven motions submitted by TQ Delta and
ADTRAN regarding Family 10. This opinion will address
ADTRAN's Motion to Preclude Expert Testimony Inconsistent
with the Court's Claim Construction for Family 10. (D.I.
727). I have reviewed the parties' briefing
and related papers. (D.I. 729, 771, 787). After full
consideration of the briefing, the motion is resolved as
TQ Delta filed this lawsuit against Defendant ADTRAN on July
17, 2014 asserting infringement of one or more patents from
ten patent families. (D.I. 1). I have divided the case into
separate trials based on families of patents. (D.I. 369).
This motion relates to the Family 10 patent. ADTRAN moves to
exclude the opinions of TQ Delta's technical expert Dr.
Arthur Brody that the asserted claims of the '660 patent
require a "purpose," which ADTRAN states would
contradict the Court's claim construction order and
opinion, are unreliable and unhelpful to the jury, and render
the claims indefinite. (D.I. 729 at 1).
district court acts as a gatekeeper" to ensure that
expert testimony is reliable and helpful. Schneider v.
Fried, 320 F.3d 396, 404 (3d. Cir. 2003). "The
primary locus of this obligation is [Federal Rule of
Evidence] 702." Daubert v. Merrell Dow Pharma,
Inc., 509 U.S. 579, 589 (1993). Rule 702 codified the
Supreme Court's holding in Daubert. Daubert
imposes a "trilogy" of requirements: (1)
qualification, (2) reliability, and (3) fit.
Schneider, 320 F.3d at 404.
construction is a legal question within the province of the
court. Markman v. Westview Instruments, Inc., 517
U.S. 370, 372 (1996). "No party may contradict the
court's construction to a jury.” Exergen Corp.
v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1321 (Fed. Cir.
2009). "As expert testimony inconsistent with the
Court's claim construction is unreliable and unhelpful to
the finder of fact," it should be excluded under the
Daubert standard. Personalized User Model,
L.L.P. v. Google, Inc., 2014 WL 807736, at * 1 (D. Del.
Feb. 27, 2014); see also Exergen, 575F.3datl321.
Expert testimony based on an impermissible claim construction
is properly excluded as irrelevant and on the basis that the
evidence could confuse the jury. Liquid Dynamics Corp. v.
Vaughan Co., 449 F.3d 1209, 1224 n.2 (Fed. Cir. 2006).
court does not construe a term or orders that the ordinary
meaning applies, expert testimony on the understanding of a
skilled artisan is appropriate to assist the jury. Avid
Tech., Inc. v. Harmonic, Inc., 2014 WL 7206301, at *4
(D. Del. Dec. 17, 2014); Cave Consulting Grp., LLC v.
OptumInsight, Inc., 2015 WL 740379, at *15 (N.D. Cal.
Feb. 20, 2015). Expert testimony regarding whether an
accused device falls within the scope of a court's claim
construction is appropriate and raises a factual issue for
the jury to resolve. In re Maxim Integrated Products,
Inc., 2015 WL 5311264, at *4 (W.D. Pa. Sept. 11, 2015).
claim construction opinion, I ruled that "the purpose of
the invention does not justify" limiting the claim scope
to expected noise increases based on impairments,
"because the asserted claims are apparatus claims."
(D.I. 375 at 7). Based on that opinion, ADTRAN asserts that
Dr. Brody should be precluded from offering any opinions that
the asserted claims require "purposeful
assignment," "purposeful division," or any
other "purpose." (D.I. 729 at 1). ADTRAN argues
that in addition to contradicting the Court's claim
construction, Dr. Brody's testimony should be excluded
because it is unreliable, unhelpful to the jury, and renders
the claims indefinite. (Id.).
Delta states that Dr. Brody's opinions that discuss or
use the word "purpose" were offered in response to
ADTRAN's expert, Dr. Zimmerman, who opined that the
assignment of SNR margins or the grouping of carriers
consistent with the asserted claims could be
"arbitrary." (D.I. 771 at 2). Therefore, TQ Delta
argues, these descriptions are not in conflict with the
Court's claim construction. (Id.). Dr. Brody did
not import a particular "purposeful" limitation in
the asserted claims. Instead, he described that the
assignment in the Accused Products of a first SNR margin and
second SNR margin to a respective first and second plurality
of carriers as purposeful, as opposed to being random or
accidental. See, e.g., D.I. 760-1, Ex. 24 at
¶¶ 77-80, 91, 163, 168, 170, 175, 177-78, 180, 182.
Zimmerman's Opening Expert Report, he argues that the
grouping of bits onto a first and second plurality of
carriers with the same SNR margin is "arbitrary."
(D.I. 760-1, Ex. 23 at ¶¶ 55, 56, 123, 124, 166,
171, 175, 176, 214). ADTRAN explains that this designation
refers to the nomenclature used to describe the groups of
modulated carriers. (D.I. 787 at 4). Even if it is true that
Dr. Zimmerman uses the term "arbitrary" only to
describe the division of carriers, to the extent that Dr.
Brody responds to this contention in his Rebuttal Report, he
does so without arguing that the asserted claims are limited
to a specific purpose. (D.I. 760-1, Ex. 24). Dr. Brody
states, "A POSITA would understand that the margins are
assigned in a 'purposeful' manner," and
"the designation to which plurality each carrier belongs
is purposefully determined based on which one of two
different SNR margins is assigned to the carrier."
(Id. at ¶¶ 34, 37). Dr. Brody also offers
examples of how the margins assigned in carriers might be
assigned in order to increase the data rate while maintaining
a robust system (id. at ¶ 35), but I do not
find that he improperly limits the claims to any specific
additional "purpose" in doing so. I also do not
find that these examples render his testimony unreliable or
render the claims indefinite.
Delta also asserts, "[T]he only reason Dr. Brody would
need to discuss this topic at trial is if Dr. Zimmerman
intends to offer his 'arbitrary' opinions at
trial." (D.I. 771 at 4). Dr. Brody's testimony
relating to the "purposeful" assignment of SNR
margins and dividing of carriers, if offered at trial
narrowly to respond to any assertion from ADTRAN's expert
that these processes are "arbitrary," appears
further to resolve ADTRAN's concern about Dr. Brody's
"unmoored" testimony being unhelpful to the jury.
(D.I. 729 at 9).
refused to limit the scope of the claims to a preferred
embodiment, I did not reject the idea that the invention
might be configured in a non-arbitrary manner. Consistent
with the Court's claim construction, Dr. Brody's
testimony does not purport to limit the claims to any
particular purpose, would not be unhelpful to the jury, and
would not render the claims indefinite.