Paper No.
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`XILINX, INC.
`Petitioner
`
`v.
`
`INTELLECTUAL VENTURES MANAGEMENT, LLC,
`Patent Owner.
`
`Inter Partes Review No. IPR2013-00112
`Patent No. 5,779,334
`
`__________________________________________________________________
`
`PETITIONER XILINX’S RESPONSE TO PATENT OWNER INTELLECTUAL
`VENTURES’ MOTION TO EXCLUDE TESTIMONY OF
`A. BRUCE BUCKMAN, Ph.D.
`
`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`TABLE OF CONTENTS
`
`I.
`
`Introduction ..................................................................................................... 1
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`II. Disputed Material Issues.................................................................................. 2
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`III. Dr. Buckman Is Qualified To Testify In This Matter ....................................... 2
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`IV. Dr. Buckman’s Testimony Is Reliable For Purposes Of Rule 702.................... 8
`
`A.
`
`B.
`
`Dr. Buckman’s Opinions Are Based On Reliable Scientific And
`Technical Principles .............................................................................. 8
`
`IV’s “Reliability” Objections Are Improper And Do Not Require
`Exclusion Of Dr. Buckman’s Testimony. .............................................. 9
`
`1.
`
`2.
`
`IV Did Not Properly Preserve Its “Reliability” Objections .........10
`
`IV’s “Examples” Do Not Require Exclusion Of Dr.
`Buckman’s Testimony................................................................10
`
`V. Conclusion......................................................................................................15
`
`–ii–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`TABLE OF AUTHORITIES
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`Page(s)
`
`CASES
`
`Daubert v. Merrell Dow Pharms.,
`509 U.S. 579 (1993).......................................................................................................15
`
`Diviero v. Uniroyal Goodrich Tire Co.,
`919 F. Supp. 1353 (D. Ariz. 1996)................................................................................6
`
`Effingo Wireless, Inc. v. Motorola Mobility, Inc.,
`Case No. SA-11-CA-649 (W.D. Tex, March 26, 2013) (Attachment A) ..........7, 8
`
`Extreme Networks, Inc. v. Enterasys Networks, Inc.,
`395 F. App’x 709 (Fed. Cir. 2010)............................................................................6, 5
`
`Flex-Rest, LLC v. Steelcase, Inc.,
`455 F.3d 1351 (Fed. Cir. 2006)......................................................................................6
`
`In re Paoli R.R. Yard PCB Litig.,
`35 F.3d 717 (3d Cir. 1994) (“Paoli II”)........................................................................9
`
`McCullock v. H.B. Fuller Co.,
`61 F.3d 1038 (2d Cir. 1995) ...........................................................................................7
`
`Oglesby v. General Motors Corp.,
`190 F.3d 244 (4th Cir. 1999) ..........................................................................................7
`
`Rushing v. Kansas City Southern Ry.,
`185 F.3d 496 (5th Cir. 1999) ......................................................................................2, 4
`
`Schneider v. Fried,
`320 F.3d 396 (3d. Cir. 2003) ..................................................................................2, 8, 9
`
`Shreve v. Sears Roebuck & Co.,
`166 F.Supp. 2d 378 (D. Md. 2001) ...............................................................................6
`
`Sundance, Inc. v. Demonte Fabricating, Ltd,
`550 F.3d 1356 (Fed. Cir. 2008)......................................................................................5
`
`OTHER AUTHORITIES
`
`37 C.F.R. § 42.64 .................................................................................................................10
`
`–iii–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`Rule 702 ..........................................................................................................................passim
`
`–iv–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`I.
`
`Introduction
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`IV’s Motion to Exclude Dr. Buckman’s testimony is similar to the one it
`
`filed in the ’545 IPR and should be denied for the same fundamental reason—
`
`because IV’s objections go to weight, and not admissibility. Notwithstanding these
`
`similarities, however, IV’s motion here is different in two significant respects from
`
`its prior motion. But neither of these differences in IV’s briefing leads to an
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`outcome in IV’s favor.
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`The first significant difference is that here, IV makes only a cursory
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`challenge to Dr. Buckman’s qualifications. This contrasts with IV’s lengthy
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`challenge in the ’545 proceeding. IV’s decision to drop most of its prior objections
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`to Dr. Buckman’s testimony makes it easier to dispose of the remaining issues.
`
`Nevertheless, Xilinx’s brief explains, in full, why Dr. Buckman is qualified to
`
`provide testimony in this proceeding.
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`Second, IV’s motion raises new “reliability” arguments, contending that Dr.
`
`Buckman’s testimony is inadmissible because of statements he made on cross-
`
`examination. IV’s reliability arguments were not properly preserved by a timely
`
`objection, and thus should not be considered now. Moreover, IV’s “reliability”
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`objections are really just additional briefing on the merits, not a serious argument
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`that Dr. Buckman’s testimony in this matter is inadmissible under Rule 702.
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`Xilinx accordingly requests that the Board deny IV’s motion and admit Dr.
`
`–1–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`Buckman’s testimony for consideration on the merits.
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`II.
`
`Disputed Material Issues
`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 ’334 patent?
`
`2.
`
`Is Dr. Buckman’s testimony in this matter reliable for purposes of
`
`Rule 702?
`
`III. Dr. Buckman Is Qualified To Testify In This Matter
`
`Dr. Buckman is qualified to testify in this matter based on his decades of
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`experience in electrical and optical engineering. IV’s cursory objections do not
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`require exclusion of any of his testimony.
`
`A. Dr. Buckman Is Qualified To Provide Opinions Regarding The
`Obviousness Of The ’334 Patent
`
`To satisfy Rule 702’s “qualification” requirement, an expert must have some
`
`“specialized expertise” that is relevant to the facts of particular case. Schneider v.
`
`Fried, 320 F.3d 396, 404 (3d. Cir. 2003). Courts apply this qualification
`
`requirement “liberally.” Id. “[A]s long as some reasonable indication of
`
`qualifications is adduced, the court may admit the evidence without abdicating its
`
`gate-keeping function.” Rushing v. Kansas City Southern Ry., 185 F.3d 496, 507
`
`(5th Cir. 1999).
`
`Here, Dr. Buckman is qualified to testify based on his decades of experience
`
`–2–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`with the sort of optical systems and components used in the ’334 patent. The
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`specific relevance of Dr. Buckman’s qualifications is described in XLNX-1008, a
`
`supplemental declaration that Dr. Buckman prepared in response to IV’s original
`
`objections. Dr. Buckman’s declaration explains that he has more than 40 years of
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`experience in the field of electrical engineering, most of which was spent as a
`
`Professor of electrical engineering at the University of Texas, where his research
`
`and teaching responsibilities included a focus on optics. [XLNX-1008, ¶¶ 3, 5]
`
`Dr. Buckman’s experience in electrical engineering and his specialization in
`
`optics relate directly to the subject matter of the ’334 patent. In general, the ’334
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`patent is directed to the problem of ‘how to project video images using light-
`
`shutter matrices.’ As Dr. Buckman explains, the ’334 patent addresses this
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`problem using standard optical components and principles of optical engineering to
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`shine light beams through a variety of color filters, light-shutter matrices, and other
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`components to create a projected image. [Id., ¶¶ 7-9, 13]
`
`Dr. Buckman has experience with the types of systems and components
`
`claimed by the ’334 patent. For example, independent claim 1 requires, e.g., “a
`
`source projecting parallel beams of light of different colors” and “an optical
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`combination system adapted for combining the separate beams.” [XLNX-1001]
`
`Dr. Buckman’s declaration explains that he has both design and consulting
`
`experience regarding systems that separate and recombine light. [XLNX-1008, ¶
`
`–3–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`10] Dr. Buckman further testified that he taught a course in guided-wave optics
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`that covered the components, including color filters, prisms, mirrors, lenses, and
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`dichroic elements, that are needed to split and recombine light beams.
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`Dr. Buckman also has experience regarding light-shutter matrix systems.
`
`[Id. ¶¶ 11] Buckman explains that LCDs (such as those described in the
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`specification of the ’334 patent) are a type of what optical engineers call “spatial
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`light modulators” or “SLMs.” Id. Dr. Buckman explains that SLMs are “pixelated
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`devices used to create light masks” and that liquid crystal displays are merely one
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`type of SLM. Id. Dr. Buckman’s book and graduate course also addressed the use
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`of SLMs. Id. Dr. Buckman also testified that the main difference between video
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`and non-video SLM applications is the speed at which they operate. [IV-2011 at
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`33:14-34:1 (“If it’s fast enough for video, then it can be used for video. If it’s too
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`slow, then you need a different type of spatial light modulator.”)]
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`Dr. Buckman further has experience with controllers for spatial light
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`modulators. Dr. Buckman explains that his work involved the use of SLM and
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`SLM controllers that operated in the megahertz range, which is far faster than the
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`30-60 Hz typically used in video applications. [XLNX-1008, ¶ 12] Dr.
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`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 ’334
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`patent is merely a type of SLM controller. Id., ¶¶ 11-12. Thus, Dr. Buckman has
`
`–4–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`experience with SLMs and controllers that create dynamically-changing light
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`masks similar to those described in the ’334 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 ’334 patent.
`
`IV’s Has Not Rebutted Dr. Buckman’s Qualification To Testify In
`B.
`This Matter
`
`IV’s challenge to Dr. Buckman’s qualifications consists of 1½ pages of
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`string-cites to legal authority and conclusory statements alleging that those cases
`
`favor exclusion of Dr. Buckman’s testimony. IV’s authorities are distinguishable
`
`because they involve very different fact patterns and thus do not favor exclusion of
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`Dr. Buckman’s testimony.
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`Two of IV’s cases are distinguishable because they involve truly unqualified
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`“experts.” In Sundance, the Federal Circuit held that it error to admit technical
`
`expert testimony (i.e., on infringement and validity) from a patent attorney who
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`had only 18 months of experience as a practicing engineer in an unrelated areas.
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`Sundance, Inc. v. Demonte Fabricating, Ltd, 550 F.3d 1356, 1361 (Fed. Cir. 2008).
`
`The fact that the witness was an experienced patent attorney did not qualify him to
`
`provide technical expert testimony. Id. Similarly, in Extreme Networks, the
`
`excluded expert had only an associate’s degree in computer programming and
`
`unspecified experience as a systems administrator, none of which qualified him to
`
`–5–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`comment on the design or development of the high speed switches, bridges, or
`
`routers. Extreme Networks, Inc. v. Enterasys Networks, Inc., 395 F. App’x 709,
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`715 (Fed. Cir. 2010).
`
`Three of IV’s cases involved experts testifying outside of their respective
`
`areas of expertise. These cases are also distinguishable on their facts. In Shreve v.
`
`Sears Roebuck & Co., 166 F.Supp. 2d 378, 393 (D. Md. 2001), the proposed expert
`
`in snowthrower safety features had never actually designed outdoor equipment.
`
`Moreover, his sole exposure to the type of snowthrower at issue was a 90 minute
`
`equipment inspection conducted in the middle of August. Id. Similarly, Diviero v.
`
`Uniroyal Goodrich Tire Co., 919 F. Supp. 1353, 56-57, 60 (D. Ariz. 1996),
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`involves an expert whose testimony regarding tire safety had been excluded in
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`other cases, who had no expertise in the field of steel-belted radial tires, and who
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`admitted that he was unfamiliar with “the mechanical, chemical, or thermal
`
`components” that go into manufacturing such a tire. Finally, Flex-Rest, LLC v.
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`Steelcase, Inc., 455 F.3d 1351, 1355-56 (Fed. Cir. 2006), involved an expert who
`
`was allowed to testify, but the scope of his testimony was limited to his area of
`
`expertise (ergonomics) where nothing in his background qualified him to testify
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`about keyboard design. None of these excluded experts are similar to Dr.
`
`Buckman, who has years of experience working with the components that make up
`
`the claimed system, and whose expertise in such components is “completely
`
`–6–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`portable from . . . non-video systems to video systems.” [IV-2011 (Buckman Tr.)
`
`at 32:20-33:10].
`
`IV’s final case does not support IV’s argument because the expert testimony
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`there was excluded only on reliability grounds; the expert “was concededly a
`
`qualified mechanical engineer.” Oglesby v. General Motors Corp., 190 F.3d 244,
`
`250 (4th Cir. 1999).
`
`IV’s motion does not address McCullock v. H.B. Fuller Co., 61 F.3d 1038
`
`(2d Cir. 1995), which Xilinx cited in the IPR2013-00029 briefing as favoring
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`admission of Dr. Buckman’s testimony. McCullock involved a throat injury
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`developed by an employee after several years of glue fume inhalation. The
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`defendant alleged that it was reversible error to admit the opinions of a medical
`
`doctor who was not a specialist in environmental medicine. The Second Circuit
`
`affirmed admission of the expert testimony, however, because the expert’s status as
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`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
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`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.
`
`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)
`
`–7–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`(Attachment A). Effingo is a patent lawsuit involving wireless headset
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`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
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`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.” Id. This
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`reasoning also favors admission of Dr. Buckman’s testimony here, since his
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`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.
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`In short, IV’s objections and cited cases do not warrant exclusion of Dr.
`
`Buckman’s testimony under Rule 702.
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`IV. Dr. Buckman’s Testimony Is Reliable For Purposes Of Rule 702
`IV’s Motion also challenges the admissibility of Dr. Buckman’s testimony
`
`under the reliability prong of Rule 702. [Mot. at 5-13] As with its objections to
`
`Dr. Buckman’s qualifications, IV’s “reliability” challenge also lacks merit.
`
`A.
`
`Dr. Buckman’s Opinions Are Based On Reliable Scientific And
`Technical Principles
`To be admitted as “reliable” under Rule 702, expert testimony “must be
`
`based on the methods and procedures of science rather than on subjective belief or
`
`unsupported speculation.” Schneider, 320 F.3d at 404. “[T]he expert must have
`
`–8–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`‘good grounds’ for his or her belief.” Id. In determining whether expert testimony
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`is reliable, however, “[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. This
`
`reliability standard is lower than the merits standard of correctness. In re Paoli
`
`R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994) (“Paoli II”).
`
`Here, Dr. Buckman’s declarations are chock full of reliance on the principles
`
`and methods of science. His reports are replete with citations to the ’334 patent
`
`and the pertinent prior art. [Ex. XLNX-1005, XLNX-1011, XLNX-1012] There is
`
`no dispute that Dr. Buckman has based his opinions on his scientific and technical
`
`knowledge. There is no mystery where Dr. Buckman’s opinions come from. Dr.
`
`Buckman is not accused of speculation or simply making it up. He is not accused
`
`of bad science. Dr. Buckman is not accused of making any unreasonable logical
`
`leaps in his analysis. Instead, Dr. Buckman’s testimony is based on the evidence in
`
`the record and provides his understanding of that evidence based on his scientific
`
`and technical experience. Thus, Dr. Buckman’s testimony passes Rule 702’s
`
`“reliability” test and is admissible.
`
`B.
`
`IV’s “Reliability” Objections Are Improper And Do Not Require
`Exclusion Of Dr. Buckman’s Testimony.
`As explained below, IV’s “reliability” objection does not impact the
`
`admissibility of Dr. Buckman’s testimony in this proceeding.
`
`–9–
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`

`

`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
`
`1.
`
`IV Did Not Properly Preserve Its “Reliability” Objections
`
`As an initial matter, IV’s “reliability” objection is improper because IV did
`
`not make a timely objection on reliability as an issue. 37 C.F.R. § 42.64.
`
`IV’s
`
`objection to Dr. Buckman’s qualifications (Dkt. Nos. 17, 32) is a different
`
`objection that did not advise Xilinx that the reliability of Dr. Buckman’s opinions
`
`was also at issue. Xilinx respectfully submits that because IV did not make a
`
`timely objection, the portion of IV’s motion relating to the reliability of Dr.
`
`Buckman’s testimony should be disregarded.
`
`2.
`
`IV’s “Examples” Do Not Require Exclusion Of Dr.
`Buckman’s Testimony
`
`IV’s Motion provides three examples that allegedly show why Dr.
`
`Buckman’s testimony should be excluded. But a review of these examples shows
`
`that IV is not really challenging the admissibility of Dr. Buckman’s testimony—
`
`instead, IV is just showing off perceived admissions and packaging them together
`
`as a “reliability” argument. This is an improper way to call the Board’s attention
`
`to testimony. Nevertheless, IV’s arguments do not show that any of Dr.
`
`Buckman’s testimony are unreliable for purposes of Rule 702; at most, IV’s
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`“examples” are credibility arguments that, when scrutinized, fall flat.
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`Xilinx’s Response to IV “Example A”
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`IV’s “Example A” concerns testimony from Dr. Buckman that a statement in
`
`his August 2013 declaration was “incorrect.” Notably, IV fails to mention that the
`
`–10–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`August 2013 declaration at issue was submitted in the ’545 IPR (IPR2013-00029),
`
`and that the allegedly incorrect statement concerned proposed substitute claim
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`language not at issue in this IPR. Thus, IV’s example A does not challenge the
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`reliability of anything that Dr. Buckman said in this matter.
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`IV’s description of Dr. Buckman’s testimony also misconstrues what
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`actually happened. During his November 2013 deposition, Dr. Buckman
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`underwent cross-examination regarding his declarations in this matter (and only
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`this matter). At the time, discovery in the ’545 matter was closed, and Dr.
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`Buckman had already been cross-examined on his ’545 declarations several weeks
`
`earlier. Nevertheless, IV asked Dr. Buckman a series of questions regarding his
`
`’545 declarations, including why his declarations in the ’545 and ’334 matters
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`identify different “second controller[s]” with regards to the proposed substitute
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`claims. [Ex. 2018 at 77-78]
`
`Unfortunately, Dr. Buckman was not adequately prepared to testify
`
`regarding the ’545 declaration at that time (after all, discovery on the ’545 patent
`
`was complete). Specifically, Dr. Buckman did not remember that the proposed
`
`substitute claims of the ’545 patent had different limitations than the proposed
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`substitute claims at issue in the ’334 matter. Thus, when counsel for IV asked a
`
`question based on the false premise that the proposed substitute claims have the
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`same elements, Dr. Buckman did not catch the incorrect premise and instead
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`–11–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`assumed that there must have been a mistake in his ’545 substitute claims report.
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`[Id. at 78-79] In reality, however, the mistake was in IV’s misleading question, not
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`in Dr. Buckman’s declarations in either matter.1
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`Whatever impact this testimony might have on the weight afforded to Dr.
`
`Buckman’s testimony, it has nothing to do with the reliability of his testimony in
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`this matter. All of the statements which were allegedly “incorrect” occurred in the
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`’545 matter, and most of that was due to a misleading question from counsel.
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`Thus, example A does not impact the admissibility of any of Dr. Buckman’s
`
`testimony in this matter.
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`Xilinx’s Response to IV “Example B”
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`IV’s “Example B” argues that Dr. Buckman’s testimony is unreliable
`
`because he identified certain wires in Lee as “control links” in the ’545 matter and
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`as “control lines” in the ’334 matter. Once again, however, IV’s “reliability”
`
`argument relates primarily to the ’545 IPR and misconstrues what actually
`
`happened at the deposition.
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`1 On redirect, when Dr. Buckman was reminded that the proposed substitute claim
`
`language was different, Dr. Buckman realized that his ’545 declaration did in fact
`
`reflect his actual opinions, except that the report included certain clearly non-
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`controller elements in the box marked as second controller (an issue which Mr.
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`Smith-Gillespie also brought to the Board’s attention. [Id. at 84-93]
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`–12–
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`

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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`The phrase “control link” refers to a limitation of IV’s proposed substitute
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`claims in both the ’545 and ’334 matters. Dr. Buckman’s declarations in both
`
`matters explain how circuitry in the Miyashita reference satisfies these control link
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`limitations. [Ex. 1011 at 17-20; Ex. 2017 at 52-53]. Dr. Buckman’s declarations
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`also explain how the Lee reference teaches connections between a Lee controller
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`and light sources that provides “individualized variable control” over the sources,
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`as also required by the proposed substitute claims. [Ex. 1011 at 20-22; Ex. 2017 at
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`54-55] Dr. Buckman calls the Lee controller/light source connections “control
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`links” in the ’545 IPR and “control lines” in the ’334 IPR. Dr. Buckman admitted
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`that it was an editing error to call those connections “control links” in the ’545
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`IPR. IV contends that this inconsistency and admission shows that Dr. Buckman’s
`
`testimony is inadmissible because it is unreliable.
`
`The Board should reject IV’s objection for several reasons. First, IV’s
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`“Example B” is not really a Rule 702 objection at all—it is at most a point against
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`Dr. Buckman’s credibility that is, by definition, insufficient to warrant exclusion of
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`his testimony. Second, IV’s Example B is not even a credibility argument against
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`Dr. Buckman’s testimony in this matter. At most, it is an argument regarding his
`
`testimony in the ’545 matter. Third, on the substance, there is no meaningful
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`distinction between “link” and “line” in the context of Lee. All sides agree that
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`there are wires between the Lee controller and the Lee light sources; and that those
`
`–13–
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`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
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`wires facilitate individualized variable control of the light sources regardless of
`
`whether they are called “lines” or “links.” Dr. Buckman was nevertheless correct
`
`when testified said that the use of the phrase “control link” in the ’545 IPR was an
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`editing error. By characterizing the Lee structure as a “link,” Dr. Buckman
`
`unnecessarily opened himself up to the very type of attack that IV is now making.
`
`But the fact that Dr. Buckman’s opinions in the ’545 matter are subject to some
`
`kind of attack does not make those opinions inadmissible or even wrong. And it
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`certainly doesn’t make his opinions in this matter inadmissible.
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`Xilinx’s Response to IV “Example C”
`
`Finally, IV’s “Example C” expands on an argument that IV made in the ’545
`
`IPR. IV argues that Dr. Buckman’s opinions are unreliable because he corrected
`
`his testimony regarding the “video controller” claim element to identify Lee 20 and
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`21 as satisfying that limitation. Notably, neither IV nor its expert denies that Lee
`
`component 20 or the combination of Lee components 20 and 21 are video
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`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.
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`[XLNX 1013 at 99:2-19] Thus, IV’s attempt to exclude undisputed testimony as
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`somehow being “unreliable” under Rule 702 fails almost by definition, since Dr.
`
`Buckman’s corrected testimony is indisputably that—correct.
`
`IV’s contention that Dr. Buckman changed his opinion regarding the Lee
`
`–14–
`
`

`

`Petitioner Xilinx’s Response re Motion to Exclude Testimony of Dr. Buckman
`
`video controller multiple times also fails. As Dr. Buckman explained in his
`
`November testimony, Lee component 20 is one example of a video controller for
`
`controlling light-shutter matrices. [XLNX-2018 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.” [Id.] 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.”)
`
`V.
`
`Conclusion
`Dr. Buckman’s testimony is admissible 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 deny IV’s motion to exclude and admit Dr.
`
`Buckman’s testimony into evidence.
`
`Dated: January 2, 2014
`
`Respectfully submitted,
`
`/David L. McCombs/
`David L. McCombs
`Registration No. 32,271
`
`–15–
`
`

`

`Xilinx Opposition to IV Motion to Exclude Portions Of Dr. Buckman’s Testimony
`
`ATTACHMENT A
`
`–16–
`
`

`

`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.
`
`
`
`

`

`CERTIFICATE OF SERVICE
`
`The undersigned certifies, in accordance with 37 C.F.R. § 42.205, that
`
`service was made on the Patent Owner as detailed below.
`
`Date of service January 2, 2014
`
`Manner of service FEDERAL EXPRESS
`
`Documents served Petitioner Xilinx’s Response to Patent Owner Intellectual
`Ventures’ Motion to Exclude Testimony of A. Bruce
`Buckman, Ph.D.
`
`Persons served GEORGE E. QUILLIN
`FOLEY & LARDNER LLP
`3000 K STREET, N.W., SUITE 600
`WASHINGTON DC 20007-5109
`gquillin@foley.com
`Telephone: 202-672-5300
`
`/David L. McCombs/
`David L. McCombs
`Registration No. 32,271
`
`