Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 1 of 13 PageID #: 28100
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`IN RE CHANBOND, LLC
`PATENT LITIGATION
`
`C.A. No. 15-842-RGA
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`CONSOLIDATED
`
`MEMORANDUM OPINION
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`Stephen B. Brauerman, Sara E. Bussiere, BAYARD, P.A., Wilmington, DE; Mark S. Raskin,
`Robert A. Whitman, Michael S. De Vincenzo, John F. Petrsoric, Andrea Pacelli (argued),
`MISHCON DE REYA NEW YORK LLP, New York, NY.
`
`Attorneys for Plaintiff
`
`Jack B. Blumenfeld, Jennifer Ying, MORRIS NICHOLS ARSHT & TUNNELL LLP,
`Wilmington, DE; Michael Brody, Jonathan Retsky (argued), WINSTON & STRAWN LLP,
`Chicago, IL; David P. Enzminger, WINSTON & STRAWN LLP, Los Angeles, CA; Krishnan
`Padmanabhan (argued), WINSTON & STRAWN LLP, New York, NY; James Lin, WINSTON
`& STRAWN LLP, Menlo Park, CA;
`
`Attorneys for Defendants
`
`December Ji, 2019
`
`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 2 of 13 PageID #: 28101
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`WS, U.S.DI~~
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`Pending before the Court is Plaintiffs Motion to Exclude the Expert Opinions of
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`Cathleen Thomas Quigley Regarding Written Description and Enablement, or in the Alternative,
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`for Summary Judgment. (D.I. 367). I have reviewed the parties' briefing and heard oral
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`argument. (D.I. 368,396,413,471).
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`I.
`
`BACKGROUND
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`In September 2015, Plaintiff ChanBond, LLC filed thirteen suits against numerous
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`defendants (collectively, "Defendants") asserting infringement of U.S. Patent Nos. 7,941,822
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`("the '822 Patent"), 8,341,679 ("the '679 Patent"), and 8,984,565 ("the '565 Patent"). (See, e.g.,
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`D.I. 1 (complaint against Atlantic Broadband Group, LLC)). The actions were consolidated for
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`all pre-trial purposes. (D.I. 107).
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`In the instant dispute, Plaintiff challenges three written description opinions offered by
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`Defendants' expert, Ms. Quigley: (1) that the asserted patents lack written description support for
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`an "intelligent device" that receives data directly from, or transmits data directly to, a cable
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`headend as claimed (the '822, '679, and '565 patents); (2) that the asserted patents lack written
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`description support for an "intelligent device" that receives "channel in use information which
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`identifies each channel in the modulated RF signal that includes information addressed to at least
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`one addressable device" (the '822 and '679 patents); and (3) that the asserted patents lack written
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`description support for an "intelligent device" that "receives" channel in use information rather
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`than one that "generates" channel in use information (the '822, '679, and '565 patents). 1 (D.I.
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`396at 1-2).
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`1 Plaintiffs motion also sought exclusion of other of Ms. Quigley' s opinions, but Defendants have dropped those
`§ 112 arguments. Thus those issues are moot. (D.I. 396 at 1 n. l ).
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`1
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 3 of 13 PageID #: 28102
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`II.
`
`LEGALSTANDARD
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`A.
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`Daubert
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`Federal Rule of Evidence 702 sets out the requirements for expert witness testimony and
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`states:
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`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.
`
`Fed. R. 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 admissibility."
`
`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.").
`
`2
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 4 of 13 PageID #: 28103
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`Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404-05 (3d Cir. 2003) (footnote and
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`internal citations omitted).2
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`B. Written Description
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`The written description requirement of 35 U.S.C. § 112, , 1 requires that the specification
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`"clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is
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`claimed." Ariad Pharm. Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane)
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`(alteration in original) (internal quotation marks omitted). "[T]he purpose of the written
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`description requirement is to 'ensure that the scope of the right to exclude, as set forth in the
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`claims, does not overreach the scope of the inventor' s contribution to the field of art as described
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`in the patent specification."' Univ. of Rochester v. G.D. Searle & Co., 358 F.3d 916, 920 (Fed.
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`Cir. 2004). "In other words, the test for sufficiency is whether the disclosure of the application
`
`relied upon reasonably conveys to those skilled in the art that the inventor had possession of the
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`claimed subject matter as of the filing date." Ariad, 598 F.3d at 1351. The written description
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`inquiry is a question of fact. See id. "A party must prove invalidity for lack of written
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`description by clear and convincing evidence." Vasudevan Software, Inc. v. MicroStrategy, Inc.,
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`782 F.3d 671 , 682 (Fed. Cir. 2015).
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`C.
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`Summary Judgment
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`"The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
`
`R. Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
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`disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317,
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`2 The Court of Appeals wrote under an earlier version of Rule 702, but the subsequent amendments to it were not
`intended to make any substantive change.
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`3
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 5 of 13 PageID #: 28104
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`330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
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`dispute about a material fact is ' genuine' if the evidence is sufficient to permit a reasonable jury
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`to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
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`2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The burden on the
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`moving party may be discharged by pointing out to the district court that there is an absence of
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`evidence supporting the non-moving party's case. Celotex, 477 U.S. at 323.
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`The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
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`for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986);
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`Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving
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`party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to
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`particular parts of materials in the record, including depositions, documents, electronically stored
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`information, affidavits or declarations, stipulations . .. , admissions, interrogatory answers, or
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`other materials; or (B) showing that the materials cited [by the opposing party] do not establish
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`the absence ... of a genuine dispute .... " Fed. R. Civ. P. 56(c)(l).
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`When determining whether a genuine issue of material fact exists, the court must view
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`the evidence in the light most favorable to the non-moving party and draw all reasonable
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`inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
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`476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
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`reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49.
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`If the non-moving party fails to make a sufficient showing on an essential element of its case
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`with respect to which it has the burden of proof, the moving party is entitled to judgment as a
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`matter oflaw. See Celotex Corp. , 477 U.S. at 322.
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`4
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 6 of 13 PageID #: 28105
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`III. DISCUSSION
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`The ' 822 patent is directed to an intelligent device system and method for distribution of
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`digital signals on a wideband signal distribution system. Claim 1 is representative and reads as
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`follows:
`
`1. An intelligent device for receiving and processing RF signals, comprising:
`an input configured to receive a modulated RF signal containing multiple
`channels, and to receive channel in use information which identifies each channel
`in the modulated RF signal that includes information addressed to at least one
`addressable device;
`a demodulator unit configured to demodulate at least two channels
`contained in the modulated RF signal when the channel in use information
`identifies the at least two channels as containing information addressed to the at
`least one addressable device; and
`a combiner configured to combine the at least two channels demodulated
`by the demodulator unit into a digital stream when the channel in use information
`identifies the at least two channels as containing information addressed to the at
`least one addressable device, and to output the digital stream to the at least one
`addressable device.
`
`('822 patent, claim 1).
`
`The '679 patent is also directed to an intelligent device system and method for
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`distribution of digital signals on a wideband signal distribution system. Claim 1 is representative
`
`and reads as follows:
`
`1. An intelligent device for transmitting information on a modulated RF signal,
`compnsmg:
`an input configured to receive a digital stream containing digital
`information, the digital information containing at least one destination address to
`which the digital information is to be sent;
`an RF channel detector configured to detect which dynamically allocated
`RF channels are currently being used in a wideband signal distribution system, and
`to generate RF channel in use information identifying which of the dynamically
`allocated RF channels are currently being used in the wideband signal distribution
`system;
`a traffic sensor configured to measure an information throughput of the
`digital information received by the input, and to generate traffic information
`identifying the information throughput of the received digital information;
`a modulator unit configured to modulate the digital information into at least
`two separate dynamically allocated RF channels when the traffic information
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`5
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 7 of 13 PageID #: 28106
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`indicates that the information throughput of the digital information exceeds an
`information capacity of a single RF channel, and to output a modulated RF signal
`containing the at least two separate dynamically allocated RF channels to the
`wideband signal distribution system such that the digital information contained in
`the received digital stream is distributed across the at least two dynamically
`allocated RF channels output to the wideband signal distribution system; and
`a processor configured to
`receive the RF channel in use information generated by the RF
`channel detector and the traffic information generated by the traffic sensor,
`determine which dynamically allocated RF channels are available to
`carry the digital information, from among a plurality of RF channels
`contained in the modulated RF signal, based on the RF channels which are
`identified in the RF channel in use information as not currently being used
`in the wideband signal distribution system,
`determine a number of dynamically allocated RF channels from
`among the plurality of RF channels contained in the modulated RF signal
`on which to carry the digital information received by the input based on the
`information throughput of the digital information and the information
`capacity of a single RF channel,
`instruct the modulator unit to distribute the received digital
`information across at least two dynamically allocated RF channels by
`modulating the received digital
`information into
`the at least two
`dynamically allocated RF channels when the traffic information indicates
`that the information throughput of the digital information exceeds an
`information capacity of a single RF channel, and
`instruct the modulator unit on which specific dynamically allocated
`RF channels from among the plurality of RF channels to carry the digital
`information in the modulated RF signal based on the determined number of
`dynamically allocated RF channels on which to carry the digital
`information, the at least one destination address contained in the digital
`information, and the determined available dynamically allocated RF
`channels which are not currently being used in the wideband signal
`distribution system.
`
`('679 patent, claim 1).
`
`The ' 565 patent is also directed to an intelligent device system and method for
`
`distribution of digital signals on a wideband signal distribution system. Claim 1 is representative
`
`and reads as follows :
`
`1. An intelligent device for transmitting information on a modulated RF signal,
`compnsmg:
`a non-transitory computer-readable recording medium having instructions
`recorded thereon; and
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`6
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 8 of 13 PageID #: 28107
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`a processor, by executing the instructions recorded on the computer(cid:173)
`readable recording medium, being configured to:
`receive a digital stream containing digital information, the digital
`information containing at least one destination address to which the digital
`information is to be sent;
`receive channel in use information identifying which dynamically
`allocated RF channels are currently being used in a wideband signal
`distribution system;
`receive traffic information identifying an information throughput of
`the received digital information;
`determine which dynamically allocated RF channels are available to
`carry the digital information, from among a plurality of RF channels
`contained in a modulated RF signal, based on the RF channels which are
`identified in the channel in use information as not currently being used in
`the wideband signal distribution system;
`determine a number of dynamically allocated RF channels from
`among the plurality of RF channels contained in the modulated RF signal
`on which to carry the received digital information based on the information
`throughput of the digital information and the information capacity of a
`single RF channel;
`instruct the modulator unit to distribute the received digital
`information across at least two dynamically allocated RF channels by
`modulating the received digital information into at least two dynamically
`allocated RF channels to be output to the wideband signal distribution
`system, when the traffic information indicates that the information
`throughput of the digital information exceeds an information capacity of a
`single RF channel;
`instruct the modulator unit on which specific dynamically allocated
`RF channels from among the plurality of RF channels to carry the digital
`information in the modulated RF signal based on the determined number of
`dynamically allocated RF channels on which to carry the digital
`information, the at least one destination address contained in the digital
`information, and the determined available dynamically allocated RF
`channels which are not currently being used in the wideband signal
`distribution system; and
`instruct the modulator unit to output the at least two dynamically
`allocated RF channels over which the received digital information is
`distributed to the wideband signal distribution system.
`
`('565 patent, claim 1).
`
`At claim construction, I construed "wideband signal distribution system" to mean "a
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`system that distributes signals on a wide band of frequencies with wideband as defined in the
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`specification." (D.I. 86 at 9).
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`7
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 9 of 13 PageID #: 28108
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`A.
`
`"Intelligent Device" Transmitting to or from a "Wideband Signal
`Distribution System"
`
`Ms. Quigley opines that "every embodiment in the specification consists of an 'intelligent
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`device' that receives and transmits data through a distribution unit . . . onto the 'wideband signal
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`distribution system."' (D.I. 396 at 3; D.I. 397, Ex. A at ,193). Defendants contend that, despite
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`the way the embodiments are described in the specification, the claims themselves are not
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`limited to an "intelligent device" that communicates through a "distribution unit" but also
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`include those that communicate directly to a cable network. (D.I. 396 at 6). Ms. Quigley' s
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`opinion states that "a person of ordinary skill in the art ... would not understand the inventors to
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`have been in possession of an invention in which the 'intelligent device' receives transmissions
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`from, or sends transmissions to a cable headend- which is to say, an invention that operates over
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`a cable system or a DOCSIS network." (D.I. 397, Ex. A at, 204). Thus, Defendants argue that
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`the claims are broader than what is disclosed in the specification because they do not include a
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`"distribution unit" through which the "intelligent device" communicates, as described in the
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`specification. (D.I. 396 at 6).
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`Plaintiff challenges Ms. Quigley' s opinion, arguing that she uses an erroneous legal
`
`standard by determining whether the specification of the patents-in-suit describes the accused
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`DOCSIS devices rather than describes the asserted claims. (D.I. 368 at 6-7). Plaintiff contends
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`that under Inline Connection Corp. v. AOL Time Warner Inc., 2007 WL 275928 (D. Del. Jan. 29,
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`2007), Ms. Quigley' s opinions should be excluded. 3 In Inline, the defendants' expert opined
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`that, because the asserted patent did not enable an end-to-end ADSL system (the accused
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`product), the specification did not enable the asserted claims and thus the claims were invalid.
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`3 Although Inline is an enablement case, Defendants do not contest the application of its logic to a written
`description issue.
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`8
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 10 of 13 PageID #: 28109
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`Inline, 2007 WL 275928, at * 1. The court determined that "while defendants' ADSL service
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`allegedly uses the claimed system to infringe, that does not mean that the patent specification
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`must enable the ADSL service as opposed to merely the claimed system." Id at *4. Because
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`defendants' expert did not evaluate whether the specification enabled a person of ordinary skill
`
`in the art "to make or use the claimed invention without undue experimentation," the court
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`excluded his enablement testimony. Id at *5.
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`Defendants argue that Ms. Quigley's report is different from the expert's report in Inline.
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`(D .I. 3 96 at 14-15). The expert in Inf ine opined that "the accused system contains features that
`
`are not part of the claimed system, but ... must be enabled by the specification." Id at *4.
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`Defendants contend that Ms. Quigley's opinion, however, focuses on the requirements of the
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`claims, which do not recite a "distribution unit," to communicate directly on a cable network.
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`(D.I. 396 at 6; see D.I. 397, Ex. A at ,r,r 182-83). Defendants argue that, based on the court's
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`claim construction, Plaintiff reads the "wideband signal distribution system" claim term to allow
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`for signal distribution not limited to that "between a distribution unit and addressable device and
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`outlets." (D.I. 471 at 99: 17-22; see D.I. 86 at 9). Without a "distribution unit," the "intelligent
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`device" transmits data over "a system that distributes signals on a wide band of frequencies with
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`wideband as defined in the specification." (See D.I. 86 at 9). According to Ms. Quigley, this
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`construction means,
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`[The claims] are not limited to networks that transmit data between an addressable device
`and the disclosed distribution units of the Asserted Patents, and presuming all other
`limitations are met, the scope of these claims may include cable networks, including
`DOCSIS 3.0 cable networks, that transmit data between a CMTS at a cable headend and
`a CM at a customer's premises.
`
`(D.1. 397, Ex. A at ,r 183).
`
`9
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 11 of 13 PageID #: 28110
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`Rather than opining on whether the specification sufficiently describes the claims, Ms.
`
`Quigley's analysis erroneously focuses on the accused technologies. Her opinion addresses
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`whether the specification adequately describes "intelligent devices" that communicate over a
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`cable network and associated technologies. (See, e.g. , id. at 11186-87, 194-95, 197-99). A cable
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`network and DOCS IS devices may be within the scope of the claims as they are argued by
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`Plaintiffs experts, but analyzing whether they are supported by the specification is not the
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`correct written description inquiry under§ 1121 1. To be reliable, an expert' s written
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`description opinion must evaluate whether the asserted patents sufficiently describe the asserted
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`claims, not the accused products. See Ariad, 598 F.3d at 1351 ; Hologic, Inc. v. Minerva
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`Surgical, Inc. , 325 F. Supp. 3d 507, 526 (D. Del. 2018). Ms. Quigley's analysis did not address
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`the asserted claims and thus she did not conduct a proper written description assessment.
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`Therefore, I will exclude as unreliable Ms. Quigley's opinions regarding written description for
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`the "intelligent device" that transmits to or from a "wideband signal distribution signal" (D.I.
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`397, Ex. A at 11181-207; D.I. 397, Ex.Bat 118-67).
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`B.
`
`"Intelligent Device" That Receives "Channel In Use Information"
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`I consider the second and third challenged opinions of Ms. Quigley together. Defendants
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`argue that there is a lack of written description for the claimed "channel in use information"
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`because the specification lacks support for the "channel in use information" identifying
`
`addressable devices and for how the "channel in use information" is obtained. (D.I. 396 at 15-
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`16).
`
`Ms. Quigley states that a person of skill in the art would not understand the specification
`
`to disclose "inspecting a packet for information to identify where the data on a channel is
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`destined (i.e., the identity of the addressable device) to determine if there is information
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`10
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`

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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 12 of 13 PageID #: 28111
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`addressed to at least one addressable device, as recited in the asserted claims of the ' 822 and
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`'679 patents." (D.I. 397, Ex. A at ,r 231 ). Plaintiff, however, contends that the claims do not
`
`require that the "channel in use information" includes "address information" or "information that
`
`' identifies the addressable devices to which the information is addressed."' (D.I. 368 at 17-18;
`
`D.I. 397, Ex. A at ,r,r 215-16). Plaintiff asserts that the claimed "channel in use information"
`
`identifies channels rather than addressable devices. (D.1. 368 at 17).
`
`Defendants also argue that the specification only discloses a single embodiment for
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`obtaining "channel in use information" (using a "detector") and that there is no support for
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`obtaining the "channel in use information" through any other means. (D.I. 396 at 15-16). Ms.
`
`Quigley contends that, despite the limited disclosure in the specification, the claims are broad
`
`enough to cover any means of obtaining "channel in use information." (Id. ; see D.I. 397, Ex. A
`
`at ,r,r 223-32). Plaintiff counters that the '679 and ' 565 patents do not require that the "intelligent
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`device" receive the "channel in use information." (D.1. 413 at 6). Plaintiff also argues that Ms.
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`Quigley concedes that the specification supports the claimed "channel in use information" for all
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`three patents-in-suit. (Id. at 9-10).
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`While Plaintiff disagrees with Ms. Quigley' s opinions on "channel in use information,"
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`her opinions are not legally erroneous under § 112 ,r 1. Ms. Quigley assesses whether the
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`claimed "channel in use information" is disclosed in the patents, thereby evaluating "whether the
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`disclosure of the application relied upon reasonably conveys to those skilled in the art that the
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`inventor had possession of the claimed subject matter as of the filing date." Ariad, 598 F.3d at
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`1351 ; (see D.I. 397, Ex. A at ,r,r 223-32). Ms. Quigley' s "channel in use information" opinions
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`are therefore reliable under Rule 702 and there is no reason to exclude them.
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`11
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`Case 1:15-cv-00842-RGA Document 476 Filed 12/19/19 Page 13 of 13 PageID #: 28112
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`Plaintiff also has not shown that summary judgment is appropriate regarding the
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`specification' s support of "channel in use information." Plaintiff argues that Ms. Quigley
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`conceded at her deposition and in her report that the specification supports the claimed "channel
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`in use information." (D.I. 368 at 18-20). Plaintiff, however, has not demonstrated that there is
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`no genuine dispute as to any material fact and that a reasonable jury could not find that there is a
`
`lack of written description for "channel in use information." Thus, Plaintiffs motion is denied
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`as to Ms. Quigley' s "channel in use information" opinions.
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`IV.
`
`CONCLUSION
`
`For the reasons set forth above, Plaintiffs Motion to Exclude the Expert Opinions of
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`Cathleen Thomas Quigley Regarding Written Description and Enablement, or in the Alternative,
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`for Summary Judgment (D.I. 367) is granted-in-part and denied-in-part. A separate order will
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`issue.
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`12
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`