Case 6:20-cv-01128-ADA-DTG Document 109 Filed 08/01/22 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`STRATOSAUDIO, INC.,
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`Plaintiff,
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`v.
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`SUBARU OF AMERICA, INC.,
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`Defendant.
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`Case No. 6:20-cv-1128-ADA
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`DEFENDANT SUBARU OF AMERICA, INC.’S MOTION TO STRIKE EXPERT
`OPINIONS ARGUING CLAIM CONSTRUCTION
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`EAST\194472041.2
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`PUBLIC VERSION
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`StratosAudio Exhibit 2018
`Hyundai v StratosAudio
`IPR2021-01267
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`Case 6:20-cv-01128-ADA-DTG Document 109 Filed 08/01/22 Page 2 of 11
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
`III.
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`IV.
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`V.
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`INTRODUCTION ............................................................................................................. 1
`LEGAL STANDARD ........................................................................................................ 1
`PLAINTIFF’S EXPERTS’ REPORTS MAKE ARGUMENTS THAT ARE
`PLAINLY CLAIM CONSTRUCTION ............................................................................. 2
`A.
`The Mangione-Smith Report ................................................................................. 2
`B.
`The Moon Report ................................................................................................... 4
`THE IMPROPER CLAIM CONSTRUCTION IN EACH OF THE MANGIONE-
`SMITH AND MOON REPORTS SHOULD BE STRIKEN. ........................................... 5
`CONCLUSION .................................................................................................................. 6
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Apple, Inc. v. Samsung Elec. Co., Ltd.,
`2014 WL 660857 (N.D. Cal. Feb. 20, 2014) .............................................................................1
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`Brown v. 3M,
`265 F.3d 1349 (Fed. Cir. 2001)..................................................................................................5
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`Cordis Corp. v. Boston Sci. Corp.,
`561 F.3d 1319 (Fed. Cir. 2009)..............................................................................................1, 2
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`CytoLogix Corp. v. Ventana Med. Sys., Inc.,
`424 F.3d 1168 (Fed. Cir. 2005)..................................................................................................2
`
`Kustom Signals, Inc. v. Applied Concepts, Inc.,
`264 F.3d 1326 (Fed. Cir. 2001) (Meyer, C.J., dissenting) .........................................................5
`
`Markman v. Westview Instr., Inc.,
`52 F.3d 967 (Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996) .....................................................1, 5
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`YETI Coolers, LLC v. RTIC Coolers, LLC,
`Case No. 1:15-CV-597, 2017 WL 404519 (W.D. Tex. Jan. 27, 2017) .............................1, 5, 6
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`Defendant Subaru of America, Inc. hereby moves to strike certain plainly improper and
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`incorrect claim construction arguments of Plaintiff StratosAudio Inc.’s infringement and validity
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`experts, Dr. Mangione-Smith and Dr. Moon respectively.
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`I.
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`INTRODUCTION
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`StratosAudio’s infringement and validity experts, Dr. Mangione-Smith and Dr. Moon
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`respectively, improperly present incorrect claim construction arguments for the terms which this
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`Court did not construe. The Opening Expert Report of William Mangione-Smith Regarding
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`Infringement of the ’405 and ’081 Patents, dated May 23, 2022 (“Mangione-Smith Report”); the
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`Rebuttal Expert Report of Todd K. Moon Regarding Validity of the ’405 and ’081 Patents, dated
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`June 21, 2022 (“Moon Report”); Dkt. 65 (Claim Construction Order). Their arguments go far
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`beyond simply elucidating the plain and ordinary meaning of any term – instead, they completely
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`change the meanings of terms using arguments from the specifications and elsewhere. The case
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`law clearly holds that experts cannot argue claim construction to the jury. Accordingly, the
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`improper (and incorrect) claim construction arguments proffered in Dr. Mangione-Smith and Dr.
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`Moon’s expert reports and testimony should be stricken.
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`II.
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`LEGAL STANDARD
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`Expert testimony regarding the plain and ordinary meaning of a phrase as understood by
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`one skilled in the art is permitted, so long as the evidence does not amount to arguing claim
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`construction to the jury. YETI Coolers, LLC v. RTIC Coolers, LLC, Case No. 1:15-CV-597,
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`2017 WL 404519, at *3 (W.D. Tex. Jan. 27, 2017) (quoting Apple, Inc. v. Samsung Elec. Co.,
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`Ltd., 2014 WL 660857 at *3 (N.D. Cal. Feb. 20, 2014) and Cordis Corp. v. Boston Sci. Corp.,
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`561 F.3d 1319, 1337 (Fed. Cir. 2009)). But “[t]he court has the power and obligation to construe
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`as a matter of law the meaning of language used in the patent claim.” Markman v. Westview
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`Instr., Inc., 52 F.3d 967, 979 (Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996). Experts therefore may
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`not offer different claim constructions and attorneys may not argue the competing constructions
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`to the jury. CytoLogix Corp. v. Ventana Med. Sys., Inc., 424 F.3d 1168, 1172 (Fed. Cir. 2005).
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`It is improper to argue claim construction to the jury because the risk of confusing the jury is
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`high when experts opine on claim construction. Cordis Corp., 561 F.3d at 1337.
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`III.
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`PLAINTIFF’S EXPERTS’ REPORTS MAKE ARGUMENTS THAT ARE
`PLAINLY CLAIM CONSTRUCTION
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`A.
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`The Mangione-Smith Report
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`Claim limitation 9[c] of the ’081 patent requires “an output system configured to present
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`concurrently the first media content and the second media content on an output of the first
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`receiver module or the second receiver module.” The Court did not construe this term (and
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`Plaintiff did not request construction), so the term has its plain and ordinary meaning to a person
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`of skill in the art. But the Mangione-Smith Report ignores the plain and ordinary meaning and
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`provides the following plainly improper claim construction of this term:
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`89. Claim 9 recites a structural limitation of the claimed system: the system must
`have an “output” of the “first receiver module” and an “output” of the “second
`receiver module.” “[A]n output” of a receiver module is the means of outputting
`the media content, e.g., speakers and/or displays. ’081 patent at 18:28-30, 21:28-
`31. Each output must have the capability of presenting—audibly, visibly, or
`otherwise. The specification explains that the primary device 4 and the ancillary
`device 5 must each individually have the capability to present the first and second
`media content, and describes a system in which either the primary device can
`present both media content, the ancillary device can present both media content, or
`each device can present one of the media content. ’081 patent at 14:27-31. The
`system can choose to output both the first and second media content on the output
`of the ancillary device (containing the second receiver module), for example
`because it has better display capabilities, or because it would be safer to do so.
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`90. Claim 9 requires that each receiving module have an output in order to achieve
`these benefits. Using the term “or,” I understand that claim 9 requires at least one
`of these outputs must be capable of presenting both media content concurrently.
`Therefore, in my opinion, for a system to infringe claim 9 of the ’081 patent, the
`system must include two receiving modules, each with an output, where at least one
`of the receiving modules has the capability to present both the first and second
`media content concurrently.
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`Ex. 1, Mangione-Smith Report, ¶¶ 89, 90 (emphasis added). Settled law (discussed in detail
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`below) requires that plain meaning of the term “or” is “and/or” and requires one, or the other, or
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`both. But Dr. Mangione-Smith ignores the plain meaning and improperly leverages the term
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`“or” to require that both the first receiver module and the second receiver module have an output,
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`and then that at least one of these outputs display the first and second media contents. These
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`statements amount to arguing claim construction narrower than the plain and ordinary meaning.
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`Claim limitation 12[h] of the ’405 patent, a method step, requires “transmitting
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`electronically to a computer server a response message comprising at least the uniquely
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`identifying data specific to at least the second media content and the location of the electronic
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`receiving device.” The Mangione-Smith Report improperly re-interprets “the location of the
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`electronic receiving device” to be “location information about the electronic receiving device”
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`as follows:
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`To the extent Subaru argues that sending a message with a link to Apple Maps is
`not literally “transmitting . . . the location of the electronic receiving device,” I
`disagree. The link conveys location information. Regardless, this limitation would
`be met under the doctrine of equivalents. A person of ordinary skill would
`understand that sending a link to Apple Maps performs the same function of
`sending location information (the location of the sender) in the same way (using
`GPS data) to achieve the same result (sharing the sender’s location with a recipient).
`In addition, if applicable, the differences between the two approaches are
`insubstantial and interchangeable, making them equivalent.
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`Ex. 2, Mangione-Smith Report, Ex. D at 54 (emphasis added). When asked about this
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`construction, Dr. Mangione-Smith left no doubt that he was re-interpreting “location” to mean
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`something different:
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`Q: … So when the claim says the location you are reading that as location
`information; is that right?
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`A: I’m quite confident that the inventors did not mean literally transporting the
`physical location, . . .but that piece of space to somebody else. That’s literally all
`I’m saying.
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`Q: …. When you read the words in these claim the location you are substituting
`for that location information; isn’t that right?
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`A: I would say I’m quite confident that I understand what the inventors intended.
`And it’s my understanding that my understanding of what the inventors intended is
`relevant here.
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`Q: Is there information about a location that is not the same as the location?
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`A: Sure. I could say I’m in a red house. That’s information about my location, but
`it’s neither suitable for identifying where on the earth that location is, let alone
`literally that location.
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`Ex. 3, Mangione-Smith Dep. at 120:3-121:3 (emphasis added). The plain and ordinary meaning
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`of the term “location” is the location not “location information,” as Dr. Mangione-Smith admits.
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`The argument therefore amounts to improper expert claim construction broadening the claim.
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`B.
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`The Moon Report
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`The Moon Report echoes the Mangione-Smith Report’s improper claim construction of
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`the term in claim 9[c] of the ’081 patent, again requiring that each receiver module require its
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`own output, only one of which need to be used to display both first and second media contents:
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`110. Presumably, Mr. Nranian and Dr. Shoemake contend that a display for
`viewing the internet and speakers for listening to the AM/FM radio broadcasts are
`the output of the first receiver module and second receiver module, respectively.
`However, neither of these two outputs presents concurrently both media content.
`Claim 9 requires two outputs, one output for the first receiver module and one
`output for the second receiver module, with at least one output configured to
`present both media content concurrently. In Crosby, a single mobile unit displays
`internet content on a screen and presents audio content on speakers or other audio
`means. See Crosby at 11:4-10 (noting the “mobile unit itself” may be provided the
`internet content and a subscriber may be able to view the internet while browsing
`the web). Thus, Dr. Shoemake and Mr. Nranian have at most identified a single
`output—the mobile unit—that presents concurrently the two media content.
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`Ex. 4, Moon Report ¶ 110 (emphasis added) (see also ¶¶ 100, 119, 126, and 135 making same
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`argument).
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`IV.
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`THE IMPROPER CLAIM CONSTRUCTION IN EACH OF THE MANGIONE-
`SMITH AND MOON REPORTS SHOULD BE STRIKEN.
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`The Court’s claim construction assigned the terms at issue their plain and ordinary
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`meanings. But as this Court explained in YETI Coolers, plain-and-ordinary-meaning is not a
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`license for an expert to embark on claim construction. “In a case tried to a jury, the court has the
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`power and obligation to construe as a matter of law the meaning of language used in the patent
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`claim.” YETI Coolers, 2017 WL 404519, at *3 (quoting Markman v. Westview Instruments, Inc.,
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`52 F.3d 967, 979 (Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996)). Here, “or” has a well-settled
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`meaning. Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001) (the word “or” means “only two-
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`digit, only three-digit, only four-digit, or any combination of two-, three-, and four-digit date-
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`data” in the claim element “two-digit, three-digit, or four-digit year-data,” because “it is the
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`plain reading of the clam text”); Kustom Signals, Inc. v. Applied Concepts, Inc., 264 F.3d 1326,
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`1333 (Fed. Cir. 2001) (Meyer, C.J., dissenting) (stating that “the plain meaning of ‘or’ can be
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`‘either or both’”). The word “or” does not mean “both must first exist, and then only one of
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`them needs to meet the rest of the claim,” as Dr. Mangione-Smith and Dr. Moon would have it.
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`Their overly-narrow interpretation of limitation 9[c] contradicts the plain and ordinary meaning
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`of the word “or” and every other term in claim 9, and was adopted for the sole purpose of
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`avoiding prior art that teaches two receiver modules, one of which has an output that presents
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`concurrently the media content from both of the receiver modules. See Ex. 4, Moon Report ¶¶
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`99-103, 108-112, 118-122, 126-127, 134-135. As this Court held in YETI Coolers, Mangione-
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`Smith’s and Moon’s “proffered opinion goes beyond explaining the meaning of the phrase, and
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`attempts to argue a construction of the language.” YETI Coolers, 2017 WL 404519 at *3. And
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`like the expert in YETI Coolers, Mangione-Smith admitted at his deposition that he was
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`interpreting the term “or” expansively. Ex. 3, Mangione-Smith Dep. at 158:13-164:2. Like the
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`expert in YETI Coolers, “Nowhere in his report or deposition does [Mangione-Smith or Moon]
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`explain why a person skilled in the art would understand the ‘literal words’ of the phrase as also”
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`requiring two separate outputs. YETI Coolers, 2017 WL 404519 at *3.
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`The same analysis applies to Dr. Mangione-Smith’s interpretation of “transmitting . . . the
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`location of the electronic receiving device.” The location of the receiving device is just that – an
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`address, a latitude and longitude, a place name, or something else denoting a specific location. It
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`is not just “location information,” which Dr. Mangione-Smith admits is something much
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`broader, and could be as vague as “red house.” Again, like the expert in YETI Coolers,
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`“Nowhere in his report or deposition does [Mangione-Smith] explain why a person skilled in the
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`art would understand the ‘literal words’ of the phrase as also” applying to mere location
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`information. YETI Coolers, 2017 WL 404519 at *3. As in YETI Coolers, “in appropriate
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`circumstances case law may permit testimony to the jury regarding the plain and ordinary
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`meaning of a phrase as understood by one skilled in the art, [but] this is not an appropriate case
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`for permitting such testimony.” Id.
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`V.
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`CONCLUSION
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`For the forgoing reasons, the Court should strike the plainly improper and incorrect claim
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`construction arguments of Dr. Mangione-Smith and Dr. Moon’s expert reports and testimony,
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`including:
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`Mangione-Smith Report: Paragraphs 89 and 90, and Page 54 of Exhibit D (discussing
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`“location information”).
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`Mangione-Smith Deposition Transcript: Pages 120:3-121:3 (discussing “location
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`information”) and 158:13-164:2 (discussing claim 9[c] of the ’081 patent).
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`Moon Report: Paragraphs 99-103, 108-112, 118-122, 126-127 and 134-135.
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`Case 6:20-cv-01128-ADA-DTG Document 109 Filed 08/01/22 Page 10 of 11
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`Dated: July 25, 2022
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`Respectfully submitted,
`
`/s/ Paul R. Steadman
`John M. Guaragna
`Texas Bar No 24043308
`DLA PIPER LLP (US)
`401 Congress Avenue, Suite 2500
`Austin, TX 78701-3799
`Tel: 512.457.7125
`Fax: 512.457.7001
`john.guaragna@us.dlapiper.com
`
`Paul R. Steadman (Pro Hac Vice)
`Illinois Bar No. 6238160
`paul.steadman@dlapiper.com
`Matthew Satchwell (Pro Hac Vice)
`Illinois Bar No. 6290672
`matthew.satchwell@dlapiper.com
`Shuzo Maruyama (Pro Hac Vice)
`Illinois Bar No. 6313434
`shuzo.maruyama@dlapiper.com
`Stephanie Lim (Pro Hac Vice)
`Illinois Bar No. 6324246
`stephanie.lim@dlapiper.com
`Robert Groselak (Pro Hac Vice)
`Illinois Bar No. 6332753
`robert.groselak@dlapiper.com
`DLA PIPER LLP (US)
`444 West Lake Street, Suite 900
`Chicago, IL 60606
`Telephone: (312) 368-4000
`Facsimile: (312) 236-7516
`
`Sangwon Sung (Pro Hac Vice)
`California Bar No. 309380
`sangwon.sung@dlapiper.com
`DLA PIPER LLP (US)
`2000 University Avenue
`East Palo Alto, CA 94303
`Telephone: (650) 833-2000
`Facsimile: (650) 833-2001
`
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`COUNSEL FOR DEFENDANT
`SUBARU OF AMERICA, INC.
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`CERTIFICATE OF CONFERENCE
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`I hereby certify that the undersigned counsel for Defendant conferred with Plaintiff’s
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`counsel. Plaintiff opposes the relief sought in this motion.
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`/s/ Paul R. Steadman
`Paul R. Steadman
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 25th day of July 2022, I electronically filed the foregoing with
`the Clerk of Court using the CM/ECF system and served such filing via electronic mail to all
`counsel of record.
`
`/s/ Paul R. Steadman
`Paul R. Steadman
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