Case 2:22-md-03034-TGB ECF No. 277, PageID.30802 Filed 08/01/24 Page 1 of 16
`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
`
`Case No. 2:22-md-03034-TGB
`HON. TERRENCE G. BERG
`JURY TRIAL DEMANDED
`
`
`PLAINTIFF NEO WIRELESS, LLC’S REPLY IN SUPPORT OF
`NEO’S MOTION TO EXCLUDE CERTAIN PORTIONS OF THE
`TESTIMONY OF DEFENDANTS’ EXPERTS AND CERTAIN EXHIBITS
`
`
`FILED UNDER SEAL
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`1
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
`
`Case No. 2:22-md-03034-TGB
`HON. TERRENCE G. BERG
`JURY TRIAL DEMANDED
`
`
`PLAINTIFF NEO WIRELESS, LLC’S REPLY IN SUPPORT OF
`NEO’S MOTION TO EXCLUDE CERTAIN PORTIONS OF THE
`TESTIMONY OF DEFENDANTS’ EXPERTS AND CERTAIN EXHIBITS
`
`
`FILED UNDER SEAL
`
`
`
`
`
`1
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`
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30803 Filed 08/01/24 Page 2 of 16
`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`TABLE OF CONTENTS
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`I. The Court Should Exclude Use of Unelected Art. ............................................. 1
`A. Defendants Confirm Koo and 802.16e Are Used to Modify 802.16a. ...... 1
`B. Koo and 802.16e Are Not Used to Provide the State of the Art. ............... 1
`C. Defendants Do Not Dispute That They Use 802.11a to Fill Gaps. ............ 2
`D. Defendants Do Not Dispute Jury Confusion. ............................................. 2
`E. Defendants Mischaracterize the April 18, 2024, Status Conference. ........ 3
`II. The Court Should Exclude Evidence of
`. ........... 3
`A.
` Are Protected by FRE 408. ..................... 3
`B. Defendants Ignore Neo’s Arguments on FRE 403..................................... 5
`III. The Court Should Strike Parts of The Mayo Report. ......................................... 6
`A. Defendants Provide No Substantive Excuse for Their Delay. ................... 6
`B. Defendants Inaccurately Describe the Impacts of Their Delay. ................ 6
`IV. The Court Should Exclude the Adaptix Materials. ............................................ 8
`A. The Adaptix Materials Are Inadmissible Hearsay. ..................................... 8
`B. The Court Should Exclude Defendants’ Invalidity Analyses. ................... 9
`C. Defendants’ Experts’ Opinions are Unreliable. ....................................... 10
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30804 Filed 08/01/24 Page 3 of 16
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`TABLE OF AUTHORITIES
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`CASES
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`Adaptix, Inc. v. Apple, Inc. et al.
`Civ. No. 5:13-cv-01776 (N.D. Cal.) ............................................................8, 9
`
`
`Baumel v. Barber Power L. Grp.
`No. 322CV00170, 2023 WL 6121001 (W.D. N.C. Sept. 18, 2023) ............... 8
`
`
`Deere & Co. v. Int’l Harvester Co.
`
`710 F.2d 1551 (Fed. Cir. 1983) ...................................................................3, 4
`
`EQT Prod. Co. v. Magnum Hunter Prod., Inc.
`
`768 F. App’x 459 (6th Cir. 2019) .................................................................... 6
`
`Interconnect Plan. Corp. v. Feil
`
`774 F.2d 1132 (Fed. Cir. 1985) ....................................................................... 2
`
`LaserDynamics, Inc. v. Quanta Comp., Inc.
`
`694 F.3d 51 (Fed. Cir. 2012) ........................................................................... 5
`
`U.S. v. Tipton
`
`269 F. App’x. 551 (6th Cir. 2008) ................................................................. 10
`
`United States v. Collier
`
`68 F. App’x 676 (6th Cir. 2003) ...................................................................... 9
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`Zurich Am. Ins. Co. v. Watts Indus., Inc.,
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`417 F.3d 682 (7th Cir. 2005) ........................................................................... 4
`
`RULES
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`Fed. R. Civ. P. 26(a)(2)(B) ........................................................................................ 7
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`Fed. R. Evid. 201(b) ................................................................................................... 9
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`Fed. R. Evid. 403 ...................................................................................................2, 5
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30805 Filed 08/01/24 Page 4 of 16
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`Fed. R. Evid. 408 .............................................................................................. 3, 4, 5
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`Fed. R. Evid. 804(b)(3)(A) ........................................................................................ 8
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`Fed. R. Evid. 807 ....................................................................................................... 8
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`iii
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30806 Filed 08/01/24 Page 5 of 16
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`I.
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`The Court Should Exclude Use of Unelected Art.
`A. Defendants Confirm Koo and 802.16e Are Used to Modify 802.16a.
`Defendants do not dispute that 802.16a discloses a fixed wireless system with
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`stationary subscriber units, as described by their experts. ECF No. 269 at 4.
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`Defendants do not dispute that Koo and 802.16e are not prior art. Id. at 6–7.
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`Defendants’ response confirms that Defendants and their experts employ Koo and
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`802.16e to modify the fixed system of 802.16a into a mobile system for their
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`invalidity theories. Id. at 3–5. This is not simply “background” information, but
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`rather an explicit combination to modify the fixed-system teachings of 802.16a. See
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`ECF No. 251, PageID.15081–82. As such, these modifications are improper
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`obviousness combinations because they use unelected and non-prior-art references.1
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`Furthermore, Defendants’ case citations regarding unelected, non-prior-art
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`references are inapposite given that these references are not used for background.
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`ECF No. 269 at 5–7. Defendants do not cite authority that allows an unelected, non-
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`prior-art reference to modify a reference against its own teachings.
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`B. Koo and 802.16e Are Not Used to Provide the State of the Art.
`Even if Defendants’ unelected references could be used for background or
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`state of the art, an earnest reading of Koo shows that the state of the art for 802.16a
`
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`1 Defendants even call 802.16a a “primary reference” relative to Koo and 802.16e.
`ECF No. 269 at 4. Defendants also provide no substantive explanation for why Dr.
`Bims’s report structure includes Koo and 802.16e in the invalidity section, and not
`a background section. Id. at 7; see also ECF No. 251, PageID.15081–82.
`1
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30807 Filed 08/01/24 Page 6 of 16
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`is the opposite of Defendants’ claims. See ECF No. 252-3, PageID.15931.
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`For 802.16a, Koo states that 802.16a “considered a fixed state of a current SS
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`(i.e., there is no consideration given to the mobility of the SS).” Id. at [0026]. For
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`802.16e, Koo states that 802.16e “has not proposed a new method for improving the
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`SS’s mobility.” Id. Indeed, the fact that 802.16e introduced mobility as a future
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`amendment shows that the state of the art for 802.16a did not include mobility at the
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`time of Koo, let alone the time of the inventions. ECF No. 251, PageID.15086; cf.
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`Interconnect Plan. Corp. v. Feil, 774 F.2d 1132, 1138 (Fed. Cir. 1985) (“The
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`invention must be viewed…in the state of the art that existed at the time.”).
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`C. Defendants Do Not Dispute That They Use 802.11a to Fill Gaps.
`As for 802.11a, Defendants’ brief does not dispute that 802.11a is an
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`unelected reference that is used to supply the missing element of a “request for a
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`probing signal from a base station” to the Harel reference. See ECF No. 269; see
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`also ECF No. 251, PageID.15081–82. Again, this is not a “background reference”
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`but rather an improper obviousness combination. ECF No. 269 at 5.
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`D. Defendants Do Not Dispute Jury Confusion.
`Defendants do not dispute that their use of Koo, 802.16e, and 802.11a would
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`cause jury confusion, but instead imply that such confusion can be addressed using
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`cross examination and jury instructions. Id. at 8. Defendants’ proposal is prejudicial
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`and wasteful of the Court and parties’ resources. See FRE 403. While Defendants’
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30808 Filed 08/01/24 Page 7 of 16
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`proposal cannot guarantee a cure for the risk of juror confusion, preventing them
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`from relying on such unelected references eliminates such risk.
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`E. Defendants Mischaracterize the April 18, 2024 Status Conference.
`Finally, Defendants mischaracterize the April 18, 2024 status conference. Id.
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`at 1. This was not a hearing and Neo had not yet filed a motion to strike any of the
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`unelected references. At most, the Court only generally clarified that unelected
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`references may not be used to show invalidity. Neo’s present motion contends that
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`Defendants are performing precisely that improper analysis, rather than background
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`analysis. A final determination on that issue was not addressed at the conference.
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`II. The Court Should Exclude Evidence of the
` Are Protected by FRE 408.
`A.
`Defendants ignore the fact that
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`.
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` Defendants do not—and cannot—
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`dispute this. One of Defendants’ damages experts considered this fact in forming her
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`opinion. Id. at 16–17. That
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`; Defendants cite nothing to the contrary.
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`Defendants’ cited caselaw is readily distinguishable and supports Neo’s
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`position. In Deere & Co. v. Int’l Harvester Co., the Court did not, as Defendants
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`suggest, set forth a blanket rule that FRE 408 does not apply if “the compromise was
`3
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30809 Filed 08/01/24 Page 8 of 16
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`between plaintiff and a third party.” 710 F.2d 1551, 1557 (Fed. Cir. 1983). Rather,
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`the Deere court focused on whether the claim being compromised was active and
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`involved the same parties. Thus, the Court found one offer admissible because it was
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`a pre-litigation offer for an “as yet, uncontested patent,” and another because it was
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`a “completed compromise with a third party not involved in the present litigation.”
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`Id. By inference, Deere supports Neo’s position that an offer to license contested
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`patents, where the license would complete a compromise of the present litigation, is
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`inadmissible. The same is true for Zurich Am. Ins. Co. v. Watts Indus., Inc., where
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`the court explained that “[t]he balance is especially likely to tip in favor of admitting
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`evidence when the settlement communications at issue arise out of a dispute distinct
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`from the one for which the evidence is being offered.” 417 F.3d 682, 689 (7th Cir.
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`2005) (emphasis added). Where the dispute is identical, as here, it follows that the
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`balance tips against admitting the evidence in question.
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`Defendants next attempt to conflate the
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` with the
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`. But Neo’s positions are exactly consistent with the cases
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`above, and Neo is not picking and choosing arbitrarily, as Defendants claim.
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`just as the Deere and Zurich courts found, all parties here agree they are comparable
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`and admissible licenses not subject to Rule 408.
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`, by
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`—which is why,
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`4
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30810 Filed 08/01/24 Page 9 of 16
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`contrast, sought
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`offers to
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`. Neo’s consistent, reconcilable position is that discussions of
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`—should be excluded under FRE 408, and
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`—should not be excluded under FRE 408.
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`B. Defendants Ignore Neo’s Arguments on FRE 403.
` Defendants’ sole argument in response to Neo’s contention that the
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` should be excluded under FRE 403 is that “Neo cites no aggravating
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`factors” to show undue prejudice. ECF No. 269 at 14. It is unclear what Defendants
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`mean by “aggravating factors,” but in any event, that is not the proper legal test for
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`exclusion under FRE 403, and the case they cite for support does not mention any
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`such test. See generally LaserDynamics, Inc. v. Quanta Comp., Inc., 694 F.3d 51
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`(Fed. Cir. 2012). As Neo argued in its Motion, Defendants’ use of
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`misleading the jury and conflating the value of
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` by
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` with the value of a reasonable royalty under the
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`appropriate legal framework governing this case. In other words, the probative value
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`is substantially outweighed by the risk of undue prejudice and misleading the jury.
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`5
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30811 Filed 08/01/24 Page 10 of 16
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30812 Filed 08/01/24 Page 11 of 16
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30813 Filed 08/01/24 Page 12 of 16
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`argue that Neo was not prejudiced because
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`. Id. This is backwards. Neo
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`. ECF No. 251, PageID.15106–07.
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`IV. The Court Should Exclude the Adaptix Materials.
`A. The Adaptix Materials Are Inadmissible Hearsay.
`First, Defendants falsely claim that Neo did not provide any hearsay analysis
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`for the Adaptix materials, ignoring that Neo cited the hearsay analysis in its motion
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`for summary judgment. Compare ECF No. 251 at 30, with ECF No. 254 at 28–30.
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`Moreover, Defendants’ cursory attempts to apply hearsay exceptions to the Adaptix
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`materials fail. For instance, the emails cited by Defendants’ experts are not quoted
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`by the Court. The Adaptix Court quoted the Defendants’ brief, which quoted an
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`email. Even if the underlying email was a business record, that leaves the brief and
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`order as inadmissible hearsay that Defendants cannot cure. Nor are the Adaptix
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`depositions admissible under FRE 804(b)(3)(A), since Defendants cannot show (on
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`a non-existent record) that each statement was contrary to the deponent’s interest.
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`Second, Defendants cite Baumel to propose the Adaptix order be admitted
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`under FRE 807, but the Baumel Court expressly noted that the “Plaintiffs [did] not
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`intend to offer the Orders to prove that the arbitrator’s opinions and findings…[were]
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`true.” No. 3:22-cv-00170, 2023 WL 6121001, at *2 (W.D.N.C. Sept. 18, 2023).
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`Moreover, that case involved “formal written rulings in the arbitration,” rather than
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30814 Filed 08/01/24 Page 13 of 16
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`a disputed recitation of the record as found in the Adaptix Order. Id.
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`Third, Defendants argue that the Court could take judicial notice of the
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`Adaptix Order. However, “[a] judicially noticed fact must be one not subject to
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`reasonable dispute.” FED. R. EVID. 201(b). The parties clearly dispute the contents
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`and inferences from that order. See, e.g., United States v. Collier, 68 F. App’x 676,
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`683 (6th Cir. 2003) (affirming denial of judicial notice of bankruptcy order because
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`findings were subject to dispute). And, in any event, judicial notice of the Adaptix
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`litigation would not help Defendants because there were never any formal findings
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`in Adaptix as to whether the allegations of inequitable conduct were true.
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`Fourth, Defendants argue that their experts’ use of the Adaptix materials itself
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`proves that they are allowed to use the Adaptix materials. See ECF No. 269 at 30.
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`This is an exercise in tautology—it allows experts to use any inadmissible evidence
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`they wish because the use of such evidence legitimizes itself.
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`Finally, Defendants’ statement that the materials provide “context” for Project
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`Angel shows that Defendants do not have any admissible evidence that would
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`support their assertions about Dr. Li’s knowledge. Defendants could have asked Dr.
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`Li what he knew about Project Angel and its materiality. They did not. In any case,
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`the Adaptix Order does not discuss Dr. Li’s knowledge, if any, about Project Angel.
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`The Court Should Exclude Defendants’ Invalidity Analyses.
`B.
`Defendants’ experts did not just analyze Project Angel for purposes of their
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30815 Filed 08/01/24 Page 14 of 16
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`unenforceability defenses; they analyzed whether it was invalidating prior art. At
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`no point did Defendants seek leave to supplement or amend their experts’ reports to
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`address materiality as distinct from invalidity. Defendants’ presentation of invalidity
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`analyses of Project Angel, even if they purport to do so only to show materiality,
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`risks confusing the issues in a manner that would be highly prejudicial to Neo.
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`C. Defendants’ Experts’ Opinions are Unreliable.
`First, Defendants do not dispute that their experts copied lengthy recitations
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`of alleged facts directly from Defendants’ invalidity contentions, serving as mere
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`conduits for Defendants’ self-serving arguments. This renders them sufficiently
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`unreliable to merit exclusion. U.S. v. Tipton, 269 F. App’x. 551, 560 (6th Cir. 2008).
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`Next, Defendants insist that their experts never claimed
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` and accuse Neo of misrepresentation. No.
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`Dr. Bim’s exact words were:
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`ECF No. 251-2, PageID.15262 at ¶ 651 (emphasis added). Dr. Wells, likewise, states
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`that the information
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` ECF No. 251-1, PageID.15182 at ¶ 616. Defendants’ experts assumed—
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`without evidence—
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` despite
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`admitting at deposition that they saw no evidence to support such a theory.
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`10
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30816 Filed 08/01/24 Page 15 of 16
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`DATED: August 1, 2024
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`Respectfully submitted,
`
`/s/ Christopher S. Stewart
`Jason D. Cassady
`Texas Bar No. 24045625
`Email: jcassady@caldwellcc.com
`Christopher S. Stewart
`Texas Bar No. 24079399
`Email: cstewart@caldwellcc.com
`Daniel R. Pearson
`Texas Bar No. 24070398
`Email: dpearson@caldwellcc.com
`Hamad M. Hamad
`Texas Bar No. 24061268
`Email: hhamad@caldwellcc.com
`Bailey A. Blaies
`Texas Bar No. 24109297
`Email: bblaies@caldwellcc.com
`Bjorn. A. Blomquist
`Texas Bar No. 24125125
`Email: bblomquist@caldwellcc.com
`James F. Smith
`Texas Bar No. 24129800
`Email: jsmith@caldwellcc.com
`James Yang
`California Bar No. 329979
`Email: jyang@caldwellcc.com
`Alexander J. Gras
`Texas Bar No. 24125252
`Email: agras@caldwellcc.com
`CALDWELL CASSADY CURRY P.C.
`2121 N. Pearl St., Suite 1200
`Dallas, Texas 75201
`Telephone:
`(214) 888-4848
`Facsimile:
`(214) 888-4849
`Jaye Quadrozzi (P71646)
`Email: jcquadrozzi@varnumlaw.com
`VARNUM LLP
`480 Pierce Street, Suite 300
`Birmingham, Michigan 48009
`Telephone:
`(248) 567-7800
`Facsimile:
`(214) 567-7423
`
`ATTORNEYS FOR PLAINTIFF
`NEO WIRELESS LLC
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`Case 2:22-md-03034-TGB ECF No. 277, PageID.30817 Filed 08/01/24 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`I certify that counsel of record is being served with a copy of the foregoing
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`document via the Court CM/ECF system on August 1, 2024.
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`/s/ Christopher S. Stewart
`Christopher S. Stewart
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