Paper No.
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`XILINX, INC, Petitioner
`
`v.
`
`Patent of INTELLECTUAL VENTURES MANAGEMENT, LLC,
`Patent Owner.
`
`Patent No. 5,632,545
`Issue Date: May 27, 1997
`Title: ENHANCED VIDEO PROJECTION SYSTEM
`
`_____________________
`
`Inter Partes Review No. IPR2013-00029
`
`__________________________________________________________________
`
`XILINX OPPOSITION TO IV MOTION TO EXCLUDE PORTIONS OF
`DR. BUCKMAN’S TESTIMONY
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`XILINX, INC, Petitioner
`
`v.
`
`Patent of INTELLECTUAL VENTURES MANAGEMENT, LLC,
`Patent Owner.
`
`Patent No. 5,632,545
`Issue Date: May 27, 1997
`Title: ENHANCED VIDEO PROJECTION SYSTEM
`
`_____________________
`
`Inter Partes Review No. IPR2013-00029
`
`__________________________________________________________________
`
`XILINX OPPOSITION TO IV MOTION TO EXCLUDE PORTIONS OF
`DR. BUCKMAN’S TESTIMONY
`
`
`
`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`TABLE OF CONTENTS
`
`Page(s)
`
`I.
`
`II.
`
`Introduction ................................................................................................. 1
`
`Disputed Issues Of Material Facts................................................................ 2
`
`III.
`
`Legal Standards ........................................................................................... 2
`
`IV. Dr. Buckman’s Testimony Is Admissible Under Rule 702........................... 4
`
`A.
`
`B.
`
`C.
`
`Dr. Buckman Is Qualified To Provide Opinions Regarding The
`Obviousness Of The ’545 Patent........................................................ 4
`
`IV’s Objections To Dr. Buckman’s Qualifications Go To Weight, Not
`Admissibility ..................................................................................... 8
`
`Dr. Buckman’s Opinions Are Reliable Under Rule 702 ....................13
`
`V.
`
`Conclusion..................................................................................................15
`
`-i-
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`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc.,
`709 F.3d 872 (9th Cir. 2013)............................................................................15
`
`Daubert v. Merrell Dow Pharms.,
`509 U.S. 579 (1993).............................................................................1, 3, 9, 14
`
`Deputy v. Lehman Bros., Inc.,
`345 F.3d 494 (7th Cir. 2003)............................................................................15
`
`Effingo Wireless, Inc. v. Motorola Mobility, Inc.,
`Case No. SA-11-CA-649 (W.D. Tex, March 26, 2013)..............................11, 12
`
`Engineered Prods. Co. v. Donaldson Co.,
`313 F. Supp. 2d 951 (N.D. Iowa 2004) ............................................................15
`
`In re Paoli R. Yard PCB Litig.,
`916 F.2d 829 (3d Cir. 1990) (“Paoli I”) .............................................................3
`
`In re Paoli RR Yard PCB Litig.,
`35 F.3d 717 (3d Cir. 1994) (“Paoli II”)..............................................................4
`
`McCullock v. H.B. Fuller Co.,
`61 F.3d 1038 (2d Cir. 1995)...................................................................2, 10, 11
`
`Rushing v. Kansas City Souther Ry.,
`185 F.3d 496 (5th Cir. 1999)..............................................................................3
`
`Schneider v. Fried,
`320 F.3d 396 (3d Cir. 2003)...........................................................................3, 4
`
`Shreve v. Sears Roebuck & Co.,
`166 F. Supp. 2d 378 (D. Md. 2001)..............................................................9, 10
`
`Sloan Valve Co. v. Zurn Indus.,
`2013 U.S. Dist. LEXIS 148059 (N.D. Ill. Oct. 15, 2013) .................................15
`
`United States v. Brown,
`415 F.3d 1257 (11th Cir.2005)...........................................................................3
`
`–ii–
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`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`United States v. Vargas,
`471 F.3d 255 (1st Cir. 2006) ..............................................................................9
`
`Watson v. United States,
`668 F.3d 1008 (8th Cir. 2012)............................................................................3
`
`–iii–
`
`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`I.
`
`Introduction
`Under Rule 702, courts play a “gatekeeping” role in determining whether
`
`expert testimony is admissible. Daubert v. Merrell Dow Pharms., 509 U.S. 579,
`
`597 (1993). In fulfilling this gatekeeping role, courts protect the integrity of the
`
`judicial system—especially juries—from baseless, speculative, or wholly
`
`unqualified witness testimony. But this gatekeeping role is a part of, not a
`
`substitute for, the adversary process. Thus, in applying Rule 702, courts consider
`
`and expert’s qualifications “liberally” and do not evaluate the evidence beyond
`
`Rule 702’s minimum admissibility/reliability threshold. The gatekeeping process
`
`specifically reserves any remaining issues for the finder-of-fact to consider in the
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`decision-making process. Such issues are said to “go to weight, not admissibility.”
`
`Xilinx’s expert, Dr. A. Bruce Buckman, Ph.D., is a former professor of
`
`electrical engineering at the University of Texas with over forty years of
`
`experience. He specializes in optical systems, such as those used in the ’545
`
`patent, and is the author of a graduate-level text on optics. But notwithstanding his
`
`credentials, IV asserts that Dr. Buckman is “unqualified” to offer the opinions in
`
`XLNX-1012 and XLNX-10131 because he does not specialize in “video
`
`projection” or “liquid crystal display” technology. [Paper No. 35] As explained
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`below, however, IV’s objections to Dr. Buckman’s qualifications must be
`
`1 IV has not requested exclusion of XLNX-1006, XLNX-1021 or any of Dr.
`Buckman’s deposition testimony in this matter.
`
`–1–
`
`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`overruled, because “[d]isputes as to the strength of [the] credentials . . . go to the
`
`weight, not the admissibility.” McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044
`
`(2d Cir. 1995). IV also objects that Dr. Buckman’s testimony is “unreliable”
`
`because he corrected an opinion in response to IV’s valid criticisms. This
`
`objection also goes to weight and not admissibility, particularly where, as here, the
`
`technical correctness Dr. Buckman’s corrected opinion is uncontested. Thus, Dr.
`
`Buckman’s credentials and testimony should be admitted by the Board in its
`
`“gatekeeper” role so that they can be fully weighed and considered by the Board in
`
`its “fact-finder” role evaluating the merits of this IPR.
`
`Or, in other words, IV’s motion to exclude should be denied.
`
`II.
`
`Disputed Issues Of Material Facts
`1.
`Does Dr. Buckman’s knowledge and experience as a professor of
`
`electrical engineering and a specialist in optics qualify him under Rule 702 to
`
`provide testimony regarding the ’545 patent?
`
`2.
`
`Is Dr. Buckman’s testimony reliable for purposes of Rule 702?
`
`III. Legal Standards
`The admissibility of expert testimony is governed by Fed. R. Evid. 702,
`
`which provides:
`
`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
`
`–2–
`
`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`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.
`As noted above, under Rule 702, courts play a screening or “gatekeeping” role.2
`
`Daubert, 509 U.S. at 596-97. This gatekeeping role focuses on three issues: (1)
`
`qualification; (2) reliability; and (3) fit.3 Schneider v. Fried, 320 F.3d 396, 404 (3d
`
`Cir. 2003) (citing Daubert).
`
`“Qualification” refers to the requirement that the witness possess
`
`“specialized expertise” that is relevant to the issues in the case. Schneider v. Fried,
`
`320 F.3d at 404. Courts apply this requirement “liberally” when evaluating
`
`whether someone qualifies as an expert due to their scientific, technical, or other
`
`specialized knowledge. In re Paoli R. Yard PCB Litig., 916 F.2d 829, 856 (3d Cir.
`
`1990) (“Paoli I”). “[A]s long as some reasonable indication of qualifications is
`
`adduced, the court may admit the evidence without abdicating its gate-keeping
`
`2 Many courts have relaxed the application of Daubert in the context of bench
`trials, because Rule 702 is designed to prevent juries from being swayed by
`dubious scientific evidence, a concern that does not exist when a court sits as the
`finder of fact. Watson v. United States, 668 F.3d 1008, 1015 (8th Cir. 2012).
`“There is less need for the gatekeeper to keep the gate when the gatekeeper is
`keeping the gate only for himself.” United States v. Brown, 415 F.3d 1257, 1269
`(11th Cir.2005)). This is especially true here, where the finder of fact is a panel of
`Administrative Patent Judges.
`3 Here, IV challenges only Dr. Buckman’s qualifications and reliability; the fit
`(relevance) of Dr. Buckman’s testimony is uncontested.
`
`–3–
`
`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`function.” Rushing v. Kansas City Souther Ry., 185 F.3d 496, 507 (5th Cir. 1999).
`
`After that, qualifications become an issue for the trier of fact rather than for the
`
`court in its gate-keeping capacity.” Id.
`
`For testimony to be “reliable” under Rule 702, “it must be based on the
`
`methods and procedures of science rather than on subjective belief or unsupported
`
`speculation.” Schneider, 320 F.3d at 404. In other words, “the expert must have
`
`‘good grounds’ for his on her belief.” Id. Nevertheless, the reliability standard is
`
`lower than the merits standard of correctness. In re Paoli R. Yard PCB Litig., 35
`
`F.3d 717, 744 (3d Cir. 1994) (“Paoli II”). In fact, expert testimony based on good
`
`grounds may be admissible even if the court acting as a gatekeeper thinks that the
`
`testimony is incorrect. Id. Moreover, “[t]he trial court may not . . . rely on factors
`
`that traditionally go to the issues of credibility and persuasiveness to determine that
`
`the expert witness’s testimony is not reliable.” Weinstein's Evidence Manual §
`
`13.02.
`
`IV. Dr. Buckman’s Testimony Is Admissible Under Rule 702
`As set forth below, Dr. Buckman’s testimony is admissible under Rule 702.
`
`A.
`
`Dr. Buckman Is Qualified To Provide Opinions Regarding The
`Obviousness Of The ’545 Patent
`Dr. Buckman’s qualifications and their relevance to his matter are described
`
`in XLNX-1021, a declaration which Dr. Buckman prepared in response to IV’s
`
`challenges to his qualifications. In his declaration, Dr. Buckman explains that he
`
`–4–
`
`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`has more than 40 years of experience in the field of electrical engineering. XLNX-
`
`1021 ¶ 5. For most of this time, Dr. Buckman was a professor of electrical
`
`engineering at the University of Texas, where his research and teaching
`
`responsibilities included a focus on optics. Id. at ¶ 3.
`
`Dr. Buckman’s experience in electrical engineering and his specialization in
`
`optics relate directly to the subject matter of the ’545 patent. The ’545 patent is
`
`directed to the problem of “how to project video images using light-shutter
`
`matrices.” As Dr. Buckman explains, the ’545 patent addresses this problem using
`
`standard optical components and principles of optical engineering to shine light
`
`beams through a variety of color filters, light-shutter matrices, and other
`
`components to create a projected image. Id., ¶ 10. This is illustrated below in the
`
`annotated figure below from Xilinx’s Petition.
`
`–5–
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`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`The following claim chart shows how these components correspond to the claim
`
`language, and whether they are optical, video, or LCD components.
`
`Optics Video4 LCD
`
`
`Claim Limitation
`A 1. A video projector system comprising: individual
`light sources, one for each color to be projected,
`adapted to provide each a separate light beam;
`B a lens system in the path of the separate light beams
`adapted for focusing the beams;
`C a number of individual color filters equal to the
`number of beams, in the colors to be projected, and
`placed one each in each beam path;
`D a light-shutter matrix system comprising a number of
`equivalent switching matrices equal to the number of
`beams and placed one each in the beam paths;
`a video controller adapted for controlling the light-
`shutter matrices; and
`an optical combination system adapted for
`combining the several beams into a single composite
`beam for projection on a surface to provide a video
`display;
`G wherein each beam passes through a color filter
`before being processed by a light-switching matrix.
`D 2. The video projection system of claim 1 wherein
`
`the light-shutter matrices are monochrome LCD
`arrays.
`3. The video projector system of claim 1 wherein
`three light sources provide three beams, and red,
`green, and blue filters are used to provide red, green,
`and blue beams to an LCD matrix system.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`E
`
`F
`
`C,
`G
`
`As illustrated in the table above, all of the major components of the ’545
`
`4 The three preambles refer to a “video projector system,” but all sides seem to
`agree that the preambles are not limitations, and thus they are not marked in the
`video column of the chart.
`
`–6–
`
`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`patent are “optical” components. Some of these components are also “video”
`
`components, but there is no indication that these are anything other than the
`
`garden-variety optical components that were available in the mid-1990s.
`
`Similarly, the dependent claims require LCDs. But independent claim 1 does not
`
`require an LCD, and the ’545 patent goes out of its way to point out that the
`
`claimed light-shutter matrices need not be LCDs. [XLNX-1001 at 4:2-3]
`
`Dr. Buckman’s knowledge and expertise are directly relevant to the type of
`
`system described and claimed in the ’545 patent. As shown above, claim 1
`
`requires the creation of light beams of different colors. XLNX-1001. Dr.
`
`Buckman explains that he taught a course in guided-wave optics that covered the
`
`components needed to do this, such as color filters, prisms, mirrors, lenses, and
`
`dichroic elements (i.e., elements used to split or recombine light beams). XLNX-
`
`1021, ¶ 5. Dr. Buckman also explains that “[d]uring my career, I also designed and
`
`built systems using these [optical] components.” Id. ¶ 8. Dr. Buckman’s
`
`testimony explains that these optical concepts “are completely portable from . . .
`
`non-video systems to video systems.” IV-2004 (Buckman Tr.) at 32:20-33:10.
`
`Notably, Dr. Buckman’s testimony on last this point is unchallenged.
`
`Dr. Buckman also has expertise regarding light shutter matrices. Dr.
`
`Buckman explains that liquid crystal displays (such as those described in the
`
`specification of the ’545 patent) are a type of what optical engineers call “spatial
`
`–7–
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`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`light modulators” or SLMs. XLNX-1021, ¶ 11. Dr. Buckman explains that SLMs
`
`are “pixelated devices used to create light masks” and that liquid crystal displays
`
`are merely one type of SLM. Id. Dr. Buckman’s book and graduate course also
`
`addressed the use of SLMs. Id. Dr. Buckman also testified that the main
`
`difference between video and non-video SLM applications is the speed at which
`
`they operate. IV-2004 at 33:14-34:1 (“If it’s fast enough for video, then it can be
`
`used for video. If it’s too slow, then you need a different type of spatial light
`
`modulator.”). Dr. Buckman further explains that his work involved the use of
`
`SLM and SLM controllers that operated in the megahertz range, which is far faster
`
`than the 30-60 Hz typically used in video applications. XLNX-1021, ¶ 12. Dr.
`
`Buckman’s testimony also identifies a passage from his book regarding devices
`
`that control SLMs, and explains that a “video controller” as claimed in the ’545
`
`patent is merely a type of SLM controller. Id., ¶¶ 11-12. Thus, Dr. Buckman has
`
`experience with SLMs and controllers that create dynamically-changing light
`
`masks similar to those described in the ’545 patent.
`
`Xilinx respectfully submits that the knowledge, skills, and expertise that Dr.
`
`Buckman has developed over his career qualify him to testify regarding the
`
`relatively simple video projection system described in the ’545 patent.
`
`B.
`
`IV’s Objections To Dr. Buckman’s Qualifications Go To Weight,
`Not Admissibility
`Notwithstanding the above, IV argues that Dr. Buckman’s experience in
`
`–8–
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`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`optics does not qualify him, because his expertise is not specifically in the field of
`
`“video projection and liquid crystal displays.” [Mot. at 4]. IV’s objections are off-
`
`base. Beyond the obvious point that claim 1 does not require a liquid crystal
`
`display, IV’s argument assumes an expansive gatekeeping role that is inconsistent
`
`with Rule 702 and established precedent. As explained above, the only
`
`qualifications issue at the gatekeeping stage is whether Dr. Buckman’s knowledge,
`
`skills, and experience are helpful to the Board in understanding the ’545 patent and
`
`determining whether the claims obvious. Fed. R. Evid. 702. Any objections
`
`beyond that threshold qualification level go to the weight afforded to the expert’s
`
`testimony, not its admissibility. United States v. Vargas, 471 F.3d 255, 262 (1st
`
`Cir. 2006) (Rule 702 does not “require[] that experts be ‘blue-ribbon practitioners’
`
`with optimal qualifications”). And given that the claim language focuses so
`
`heavily on the use of optical components and light beams to project an image, Dr.
`
`Buckman’s experience with optics may entitle his opinions regarding the ’545
`
`patent to more weight than those of IV’s expert, whose career focuses on LCD flat
`
`panels rather than video projectors.5
`
`IV quotes Shreve v. Sears Roebuck & Co., 166 F. Supp. 2d 378, 391 (D. Md.
`
`5 IV’s expert, Mr. Smith-Gillespie, has experience that focuses on LCD flat panels,
`not LCD projectors. 8/29/2013 at 25:15-27 (“I understand your experience is more
`with flat panels than with projectors, right? A That's correct.”). Id. at 40:9-12
`(“Q So is it fair to say you've been exposed to projection technology during your
`career, but you don't have experience designing projection systems? A That's a
`fair characterization.”)
`
`–9–
`
`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`2001) for the proposition that an expert’s qualifications in one area do not “ipso
`
`facto qualify him to testify as an expert in all related areas.” Although this is a
`
`correct statement of the law, Shreve involved a very different scenario than exists
`
`here. In Shreve, the issue was whether the plaintiff’s injuries were caused by
`
`unsafe snow throwing equipment. The plaintiff’s expert did not have experience
`
`designing any kind of outdoor equipment, let alone a snow thrower. The expert
`
`also had no experience regarding the safety features of snow throwers. Id. at 393.
`
`And the his sole exposure to the type of snow thrower at issue was 90 minutes
`
`spent at the plaintiff’s residence in Maryland in the middle of August, during which
`
`he operated the snow thrower for about three minutes. Id.6 Thus, Shreve presents
`
`a very different set of issues than this matter, in which Dr. Buckman is
`
`undoubtedly qualified to discuss the optical elements of the ’545 patent and there
`
`are no challenges to the scientific or technical sufficiency of his testimony.
`
`A case more closely on point that demonstrates why Dr. Buckman’s
`
`testimony is admissible is McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir.
`
`1995). McCullock involved a throat injury developed by an employee after several
`
`years of glue fume inhalation. The defendant alleged that it was reversible error to
`
`admit the opinions of a medical doctor who was not a specialist in environmental
`
`medicine. The defendant argued, as IV does here, that a medical degree “is not
`
`6 The challenged expert also followed “a methodology that is the opposite of the
`scientific method.” Id. at 398.
`
`–10–
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`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`enough to qualify [a doctor] to give an opinion on every conceivable medical
`
`question.” Id. at 1043. The Second Circuit found this principle inapplicable,
`
`however, because the expert’s status as a board-certified specialist treating ear,
`
`nose, and throat conditions was “sufficient to permit his expert testimony on a
`
`throat ailment and its causes.” Id. This reasoning also applies to Dr. Buckman’s
`
`testimony, whose expertise in optical systems qualifies him to provide opinions
`
`regarding an invention made from common optical components. And just as
`
`McCullock rejects the argument that the expert had to be a specialist in
`
`environmental medicine as “an unwarranted expansion of the gatekeeper role,” Id.
`
`at 1043, it is also inappropriate to exclude Dr. Buckman because of his focus on
`
`optical systems instead of video projection or LCD technology, particularly here,
`
`where the Board is acting as a gatekeeper for itself.
`
`Another case on point is the unpublished decision in Effingo Wireless, Inc. v.
`
`Motorola Mobility, Inc., Case No. SA-11-CA-649 (W.D. Tex, March 26, 2013)
`
`(Attachment A). Effingo is a patent lawsuit involving wireless headset
`
`ergonomics. Id. The challenged expert was a mechanical engineering professor
`
`who had experience making devices that fit to the human body, but did not have
`
`experience making wireless headsets specifically. Id. The expert was nevertheless
`
`qualified to testify because “while [the expert] may not be a wireless headset
`
`expert, Defendant has produced sufficient evidence that he is qualified to testify as
`
`–11–
`
`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`an expert regarding the design of the headsets in the instant case.” Id. This
`
`reasoning also favors admission of Dr. Buckman’s testimony here, since his
`
`qualifications are more on point than the expert in Effingo and since the finder of
`
`fact here is a panel of Administrative Patent Judges, rather than a lay jury.
`
`IV also criticizes Dr. Buckman for not knowing “the standard reference
`
`works in the fields of video projection or liquid crystal display.” [Mot. at 6] What
`
`Dr. Buckman actually said, however, is that the fields of video projection and
`
`liquid crystal displays do not have their own “standard reference works,” and
`
`instead rely on works such as Born & Wolf and Goodman from the field of optics.
`
`[IV-2004 at 9:21-10:12] IV suggests that Xilinx “has now admitted that Dr.
`
`Buckman was simply wrong” about Born & Wolf and Goodman. Id. Not so.
`
`What Xilinx admitted was that the Born & Wolf and Goodman references are not
`
`“specifically directed at video or liquid crystal displays.” [IV-2017] This is
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`consistent with Dr. Buckman’s testimony that Born & Wolf and Goodman cover
`
`the general optical principles upon which liquid crystal displays operate.7
`
`IV further suggests that Xilinx made other admissions in the ’334 matter that
`
`are inconsistent with the testimony regarding his qualifications. [Mot. At 7-9].
`
`For example, IV claims that Xilinx’s admission that Dr. Buckman has not written
`
`7 Both experts have cited a number of texts relating to video projection and liquid
`crystal displays. Neither side contends that these texts enjoy status as a “standard
`reference work” in the field of video projection or liquid crystal displays.
`
`–12–
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`
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`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
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`about video projection is inconsistent with his testimony in XLNX-1021. [Mot. At
`
`9] Once again, however, this is simply not so. Dr. Buckman never claimed to
`
`have written about video projection systems; what he said was that his knowledge,
`
`understanding, and writings regarding optics are “completely portable” to the video
`
`projection systems claimed in the ’545 patent. This is precisely why Dr. Buckman
`
`is qualified to give expert testimony in this matter and why IV’s objections must be
`
`weighed in the merits and not granted conclusive effect the gatekeeping stage.
`
`Dr. Buckman’s Opinions Are Reliable Under Rule 702
`C.
`IV challenges the reliability of Dr. Buckman’s opinions regarding the Lee
`
`video controller. [Mot. at 9-12] To the extent that IV challenges only the Lee
`
`video controller testimony, that objection fails because Dr. Buckman’s testimony
`
`about Lee is actually uncontested. Neither IV nor IV’s expert actually denies that
`
`Lee component 20 or the combination of Lee components 20 and 21 are video
`
`controllers. In fact, IV’s expert intentionally chose not to express an opinion
`
`regarding Lee components 20 or 21, leaving Dr. Buckman’s opinion unchallenged.
`
`[XLNX 1014 at 99:2-19] IV’s expert also admits that “any real video projection
`
`system in 1996” (presumably including Lee) “would have had a video controller.”
`
`[XLNX-1015 at 206:8-11] Thus, IV’s attempt to exclude undisputed testimony as
`
`somehow being “unreliable” under Rule 702 fails almost by definition.
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`IV’s contention that Dr. Buckman changed his opinion regarding the Lee
`
`–13–
`
`
`
`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`video controller multiple times is also incorrect. As Dr. Buckman explained when
`
`cross examined on this issue in the ’334 matter, Lee component 20 is one example
`
`of a video controller for controlling light-shutter matrices. [XLNX-1023 at 45:11-
`
`46:9] Lee components 20 and 21 together are another example of a video
`
`controller. [Id.] Whether Lee component 20 is a “video controller” by itself or
`
`must be combined with Lee 21 “depends on what functions you put inside the
`
`controller.”8 [Id.] This is a sensible and technically-grounded response to IV’s
`
`questioning. Thus, while IV’s allegation of shifting positions may be grounds for
`
`cross examination, it is not a basis for excluding Dr. Buckman’s testimony.
`
`Daubert v. Merrell Dow Pharms., 509 U.S. 579, 596 (1993) (“Vigorous cross-
`
`examination, presentation of contrary evidence, and careful instruction on the
`
`burden of proof are the traditional and appropriate means of attacking shaky but
`
`admissible evidence.”)
`
`Finally, to the extent that IV asserts that inconsistencies in Dr. Buckman’s
`
`testimony regarding the Lee video controller somehow render the rest of his
`
`testimony unreliable, that objection also fails under Rule 702. The “reliability”
`
`question under Rule 702 is whether an expert’s opinions are “the product of
`
`reliable principles and methods” that were “reliably applied . . . to the facts” of the
`
`8 Notably, the functionality of the controller is only an issue here because IV and
`its expert keep on attempting to inject varying additional functionality into this
`term through claim construction, deposition questioning, deposition answers, or
`otherwise.
`
`–14–
`
`
`
`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`case. The fact that Dr. Buckman corrected an opinion regarding the Lee video
`
`controller in response to fair criticism does not render any of his other testimony
`
`“unreliable” in the sense of Rule 702. To the contrary, courts have recognized that
`
`experts may correct portions of their testimony in response to criticism without
`
`subjecting themselves to exclusion under Rule 702. Deputy v. Lehman Bros., Inc.,
`
`345 F.3d 494, 506 (7th Cir. 2003); Engineered Prods. Co. v. Donaldson Co., 313
`
`F. Supp. 2d 951, 1011 (N.D. Iowa 2004); Sloan Valve Co. v. Zurn Indus., 2013
`
`U.S. Dist. LEXIS 148059, 22-23 (N.D. Ill. Oct. 15, 2013). As the Ninth Circuit
`
`recently observed, under Rule 702 “[b]asically, the judge is supposed to screen the
`
`jury from unreliable nonsense opinions, but not exclude opinions merely because
`
`they are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 709
`
`F.3d 872 (9th Cir. 2013). Here, Dr. Buckman’s opinions are not even
`
`impeachable, must less “unreliable nonsense opinions.” Thus, IV’s objections to
`
`his testimony should be overruled.
`
`V.
`
`Conclusion
`Dr. Buckman’s testimony is admissible under Rule 702 because he is a well-
`
`qualified expert who has provided testimony based on reliable scientific principles
`
`and the facts of this case. The Board should therefore move past the gatekeeper
`
`phase by denying IV’s motion to exclude and admitting Dr. Buckman’s testimony
`
`into evidence.
`
`–15–
`
`
`
`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`Respectfully submitted,
`
`/David L. McCombs/
`David L. McCombs
`Registration No. 32,271
`
`HAYNES AND BOONE, LLP
`Customer No. 27683
`Telephone: 214/651-5533
`Facsimile: 214/200-0853
`Attorney Docket No.: 42299.41
`
`Dated: November 18, 2013
`
`–16–
`
`
`
`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`ATTACHMENT A
`
`–17–
`
`
`
`Case 5:11-cv-00649-HLH Document 91 Filed 03/26/13 Page 1 of 3
`Case 5:11-cv—00649—HLH Document 91 Filed 03/26/13 Page 1 of 3
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`
`EFFINGO WIRELESS,
`
`INC.,
`
`Plaintiff,
`
`v.
`
`MOTOROLA MOBILITY,
`
`INC.,
`
`Defendant.
`
`WJWIWJWJWJWJWWJWJ
`
`No. SA-ll-CA-649
`
`ORDER REGARDING MOTION TO EXCLUDE TESTIMONY OF JOSEPH J. BEAMAN
`
`Came on this day to be considered Plaintiff’s motion to
`
`exclude the testimony of Defendant's expert witness,
`
`Joseph J.
`
`Beaman, Jr., ScD. Dr. Beaman has provided expert testimony for the
`
`Defendant regarding the design, configuration, human factors, and
`
`ergonomics related to the products accused of infringement as well
`
`as the claimed configuration of the Plaintiff’s patent. Plaintiff
`
`objects to Dr. Beaman’s testimony on the grounds that he is not
`
`qualified to testify as an expert
`
`in wireless headset design.
`
`Having considered the motion,
`
`the Court finds that it should be
`
`denied.
`
`Plaintiff contends that Dr. Beaman is not qualified to testify
`
`as an expert because he is not a “person of ordinary skill in the
`
`art.” Specifically, Plaintiff argues that Dr. Beaman’s
`
`lack of
`
`experience in wireless headset design and ergonomics disqualifies
`
`him as an expert
`
`in the instant case. Dr. Beaman is a mechanical
`
`engineer with Bachelor of Science and Master of Science degrees
`
`from the University of Texas as well as a Doctor of Science in
`
`-1-
`
`
`
`Case 5:11-cv-00649-HLH Document 91 Filed 03/26/13 Page 2 of 3
`Case 5:11-cv—00649—HLH Document 91 Filed 03/26/13 Page 2 of 3
`
`Mechanical Engineering
`
`from the Massachusetts
`
`Institute
`
`of
`
`Technology.
`
`He
`
`is currently an engineering professor at
`
`the
`
`University of Texas at Austin. He has experience with product
`
`design,
`
`and he has
`
`taken several classes relating to designing
`
`products that fit
`
`the human body
`
`(human
`
`factors)
`
`as well as
`
`completing a senior design project design project
`
`relating to
`
`“human factors.” More recently,
`
`he has taught multiple product
`
`design classes in which he assisted students in designing and
`
`building products and evaluated their work to measure compliance
`
`with recognized design principles. His work includes designing
`
`prosthetics and a device designed to be inserted into a human
`
`heart.
`
`The testimony of a completely unqualified expert should be
`
`excluded. However,
`
`“as
`
`long as
`
`some
`
`reasonable indication of
`
`qualifications is adduced,
`
`the court may admit the evidence without
`
`abdicating its gate-keeping function. After that, qualifications
`
`become an issue for the trier of fact rather than for the court in
`
`its gate-keeping capacity.” Rushing v. Kansas City Southern Ry.
`
`Co.,
`
`185 F.3d 496,
`
`507
`
`(5‘h Cir. 1999)(superceded by statute on
`
`other grounds as noted in Mathis V. Exxon Corp., 302 F.3d 448, 459
`
`n.16 (5th Cir. 2002)).
`
`In the instant case,
`
`the Court finds that,
`
`while Dr. Beaman may not be a wireless headset expert, Defendant
`
`has produced sufficient evidence that he is qualified to testify as
`
`an expert regarding the design of the headsets in the instant case.
`
`-2-
`
`
`
`Case 5:11-cv-00649-HLH Document 91 Filed 03/26/13 Page 3 of 3
`Case 5:11-cv-00649—HLH Document 91 Filed 03/26/13 Page 3 of 3
`
`Any dispute regarding the reliability of his opinions can be
`
`determined by the jury.
`
`It is therefore ORDERED that Plaintiff's motion to exclude the
`
`testimony of Defendant’s expert Joseph J. Beaman (Doc. No. 78) be,
`
`and it is hereby, DENIED.
`SIGNED AND ENTERED THIS
`
`.
`
`g
`’fiéy of March, 2013.
`
`
`
`
`
`PETITIONER’S EXHIBIT LIST
`
`November 18, 2013
`
`XLNX-1001
`
`U.S. Patent No. 5,632,545 to Kikinis
`
`XLNX-1002
`
`U.S. Patent No. 5,108,172 to Flasck
`
`XLNX-1003
`
`U.S. Patent No. 5,264,951 to Takanashi
`
`XLNX-1004
`
`U.S. Patent No. 5,287,131 to Lee
`
`XLNX-1005
`
`U.S. Patent No. 5,784,038
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