Case 3:14-cv-02235-DMS-BLM Document 453 Filed 07/24/18 PageID.22142 Page 1 of 6
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`JOHN ALLCOCK (Bar No. 98895)
`john.allcock@dlapiper.com
`SEAN C. CUNNINGHAM (Bar No. 174931)
`sean.cunningham@dlapiper.com
`ERIN GIBSON (Bar No. 229305)
`erin.gibson@dlapiper.com
`ROBERT WILLIAMS (Bar No. 246990)
`robert.williams@dlapiper.com
`TIFFANY MILLER (Bar No. 246987)
`tiffany.miller@dlapiper.com
`JACOB ANDERSON (Bar No. 265768)
`jacob.anderson@dlapiper.com
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, California 92101-4297
`Tel: 619.699.2700
`Fax: 619.699.2701
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`ROBERT BUERGI (Bar No. 242910)
`robert.buergi@dlapiper.com
`AMY WALTERS (Bar No. 286022)
`amy.walters@dlapiper.com
`DLA PIPER LLP (US)
`2000 University Avenue
`East Palo Alto, CA 94303-2215
`Tel: 650.833.2000
`Fax: 650.833.2001
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`Attorneys for
`APPLE INC.
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`WI-LAN, INC.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`AND RELATED
`COUNTERCLAIMS
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`DLA PIPER LLP (US)
`S A N D I E G O
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`WEST\282494154.1
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`CASE NO. 3:14-cv-1507-DMS-BLM
`(consolidated);
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`CASE NO. 3:14-cv-02235-DMS-BLM
`(lead case)
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`APPLE INC.’S RENEWED
`OBJECTIONS TO CERTAIN
`OPINIONS OF DR. VIJAY
`MADISETTI
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`Dept.: 13A
`Judge: Hon. Dana M. Sabraw
`Magistrate Judge: Hon. Barbara L. Major
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`OBJECTIONS TO CERTAIN MADISETTI OPINIONS
`3:14-CV-001507-DMS-BLM
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`Case 3:14-cv-02235-DMS-BLM Document 453 Filed 07/24/18 PageID.22143 Page 2 of 6
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`In order to avoid disrupting the presentation of evidence at trial with multiple
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`preservation objections, Apple Inc. (“Apple”) respectfully submits for the record
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`the following written objections to certain testimony of Dr. Vijay Madisetti. As set
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`forth in Apple’s Daubert motion briefing (Dkt. Nos. 333, 373) and trial brief (Dkt.
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`No. 433), Apple objects to the testimony of Dr. Madisetti about the alleged
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`“benefits” of the asserted patents, as well as the expected testimony of Professor
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`Prince and Mr. Kennedy that rely upon such benefits opinions.
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`First, Dr. Madisetti’s “call quality” opinions are based on insufficient facts
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`and data. Fed. R. Evid. 702, Comm. Notes on Rules, 2000 Amend. He relies on
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`tests of two Samsung phones, not iPhones, conducted months before the first
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`accused iPhone was commercially released. He provides no evidence that the
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`Samsung phones are “representative” of the later-released iPhones, which by itself
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`is grounds to strike his opinions. Dr. Madisetti relies on third-party tests performed
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`on third-party products. Dr. Madisetti does not even say whether the two Samsung
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`smartphones allegedly practice the asserted patents, much less that their call quality
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`matched the accused iPhones. His assumptions about the tested Samsung
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`smartphones are unsupported and insufficient.
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`Second, contrary to Wi-LAN’s claim, Dr. Madisetti did not opine that the
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`Samsung Galaxy S4 Mini test data provides a “benchmark” for the call quality of
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`the accused iPhones. His expert reports do not use the words “benchmark” or
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`“Samsung” at all. He did not test or look at a Samsung phone, and did not opine
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`that any Samsung phone practices the asserted claims. And he did not compare the
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`Samsung Galaxy S4 Mini to an accused iPhone or any other phone. Dr. Madisetti
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`also did not opine about the purported “benchmark” network conditions during the
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`third-party magazine’s tests—which were conducted on a single day months before
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`the iPhone 6 was even released, in a single location, on a single network, and using
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`a single VoIP application, Skype, rather than Apple’s VoIP application, FaceTime.
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`S A N D I E G O
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`Thus, Wi-LAN cannot credibly claim Dr. Madisetti offered a “benchmark” opinion.
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`OBJECTIONS TO CERTAIN MADISETTI OPINIONS
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`Case 3:14-cv-02235-DMS-BLM Document 453 Filed 07/24/18 PageID.22144 Page 3 of 6
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`He did not identify the purported “benchmark” product or network conditions in his
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`report, let alone compare that purported “benchmark” Samsung phone to later-
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`released iPhones.
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`Third, Dr. Madisetti’s “call quality” opinions are an unjustified extrapolation
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`of the limited data he cites. See Fed. R. Evid. 702, Comm. Notes on Rules, 2000
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`Amend. (courts must examine “whether the expert has unjustifiably extrapolated
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`from an accepted premise to an unfounded conclusion”). Dr. Madisetti’s
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`conclusion about all accused iPhones under all network conditions—from tests
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`done on two Samsung phones in 2014—is an unjustified extrapolation from the
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`Signals Research Group paper and his own “tests.” Dr. Madisetti makes no
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`connection between the single 1.4 MOS measurement he selected from the test
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`versus his generic opinion about all of the accused iPhones. Thus, it was unreliable
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`for Dr. Madisetti to conclude that a single MOS measurement on a Samsung phone
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`could extrapolate to the general performance of all VoIP applications on the
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`accused iPhones.
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`Fourth, Dr. Madisetti’s personal “test” of two iPhones is unreliable because
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`his test cannot be challenged in any objective sense. See Fed. R. Evid. 702, Comm.
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`Notes on Rules, 2000 Amend. (courts must consider “whether the expert’s theory
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`can be challenged in some objective sense, or whether it is instead simply a
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`subjective, conclusory approach that cannot reasonably be assessed for reliability”);
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`see also Cabrera v. Cordis Corp., 134 F.3d 1418, 1423 (9th Cir. 1998) (opinion
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`based on “unsubstantiated and undocumented information is the antithesis of ...
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`scientifically reliable expert opinion”). Dr. Madisetti is expected to testify that he
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`“conducted a test using an iPhone 6 Plus and iPhone 7 Plus (on T-Mobile) for a
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`VoLTE call and a Skype call with upload data, and observed a similar degradation
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`in MOS for the Skype call.” Dkt. No. 330, Ex. 1, Madisetti Report at ¶ 415. That
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`is the end of his “analysis.” He presents no data from his purported “test”—what
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`DLA PIPER LLP (US)
`S A N D I E G O
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`the network conditions were, what the controls were, the type or source of audio he
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`OBJECTIONS TO CERTAIN MADISETTI OPINIONS
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`Case 3:14-cv-02235-DMS-BLM Document 453 Filed 07/24/18 PageID.22145 Page 4 of 6
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`used, how many times he ran his tests, or what instruments he used to measure call
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`quality (if anything). Dr. Madisetti produced two audio files from his “test,” but
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`the files simply demonstrate that the audio cuts out briefly at the 20-second mark of
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`one 102-second recording (labeled “Skype”), while the other recording (labeled
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`“VoLTE”) cuts out at the 58-second mark, and ends after 64 seconds. Dr. Madisetti
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`does not explain the audio gap in either sample. Dr. Madisetti’s “similarity”
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`opinion therefore cannot be tested—it is a subjective, conclusory opinion that
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`cannot reasonably be assessed for reliability. It should be excluded.
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`Fifth, Dr. Madisetti inappropriately assigns all of the purported benefits of
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`VoLTE to the asserted claims of the ’145 patent. Yet it is undisputed that the
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`named inventors did not invent VoLTE, and that other individuals and companies
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`contributed to the purported benefits of VoLTE. Thus, Dr. Madisetti’s expected
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`testimony that the ’145 patent claims are entirely responsible for the alleged
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`benefits VoLTE call quality as compared to a Skype call are unreliable and violate
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`the Federal Circuit’s apportionment requirements. This is particularly the case
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`when Dr. Madisetti previously opined that the no-longer-asserted claims of the ’761
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`patent also contributed to VoLTE call quality.
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`Sixth, Dr. Madisetti’s other “benefits” opinions are equally unreliable,
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`because they hinge solely on the alleged benefits of LTE, which is not sufficiently
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`tied to Wi-LAN’s “VoLTE” infringement theory. For those patents (the ’145 and
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`patents), he focuses exclusively on LTE uploading and downloading. Dkt. No. 330,
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`Ex. 1, Madisetti Report, Exhibit H thereto, Rows 2-5. Dr. Madisetti’s opinions are
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`unreliable for two reasons. As an initial matter, Dr. Madisetti’s opinions about the
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`alleged benefits of LTE do not match Wi-LAN’s “VoLTE” infringement theory.
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`See Dkt. No. 117 at 3 (“As Wi-LAN’s infringement contentions show, this suit is
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`focused on VoLTE, which was not supported by the products accused in the First
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`Action.”). Dr. Madisetti’s benefits opinions based on LTE have nothing to do with
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`VoLTE, and therefore are not sufficiently tied to the alleged practice of the asserted
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`OBJECTIONS TO CERTAIN MADISETTI OPINIONS
`3:14-CV-001507-DMS-BLM
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`patents. Moreover, his LTE-based benefits opinions would violate the summary
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`judgment order and Federal Circuit mandate in the prior Wi-LAN v. Apple case,
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`which held that Apple’s LTE-capable iPhones do not infringe Wi-LAN’s patents.
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`Wi-LAN USA, Inc. v. Apple Inc., 830 F.3d 1374, 1377 (Fed. Cir. 2016); Wi-LAN
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`USA, Inc. v. Apple Inc., Case No. 13-cv-00798, Dkt. No. 278 (S.D. Cal. Sept. 30,
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`2014).
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`For the foregoing reasons, and for the reasons set forth in Apple’s Daubert
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`briefing (Dkt. Nos. 333, 373) and Apple’s trial brief (Dkt. No. 430), the Court
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`should sustain Apple’s objections and exclude Dr. Madisetti’s testimony about the
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`purported “benefits” of the asserted patents, as well as the opinions of Professor
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`Prince and Mr. Kennedy that rely upon such benefits opinions.
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`Dated: July 24, 2018
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`DLA PIPER LLP (US)
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`By /s/ Sean C. Cunningham
`JOHN ALLCOCK
`SEAN C. CUNNINGHAM
`ERIN GIBSON
`ROBERT BUERGI
`ROBERT WILLIAMS
`TIFFANY MILLER
`JACOB ANDERSON
`AMY WALTERS
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`Attorneys for
`APPLE INC.
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`OBJECTIONS TO CERTAIN MADISETTI OPINIONS
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`Case 3:14-cv-02235-DMS-BLM Document 453 Filed 07/24/18 PageID.22147 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 24, 2018, I electronically transmitted the
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`attached document to the Clerk’s Office using the CM/ECF System for filing and
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`transmittal of a Notice of Electronic Filing to the CM/ECF registrants.
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` /s/ Sean C. Cunningham
`Sean C. Cunningham
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`OBJECTIONS TO CERTAIN MADISETTI OPINIONS
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