Case 2:17-cv-00140-WCB-RSP Document 319 Filed 02/08/19 Page 1 of 21 PageID #: 16402
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
`
`
`Plaintiff
`
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`
`Defendants.
`
`
`
`
`
`NO. 2:17-CV-00140-WCB-RSP
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S MOTION TO EXCLUDE
`IMPROPER OPINIONS AND TESTIMONY OF PLAINTIFF’S EXPERTS
`DR. JOSEPH J. LAVIOLA AND DR. DONALD R. BROWN
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 319 Filed 02/08/19 Page 2 of 21 PageID #: 16403
`
`TABLE OF CONTENTS
`
`
`Page
`
`I.
`
`II.
`
`III.
`
`IV.
`
`BACKGROUND ............................................................................................................... 1
`A.
`Opinions Based on Testing of Third-Party Applications ....................................... 1
`B.
`Opinions Directed to the Usefulness of the Claimed Inventions ........................... 2
`C.
`Opinions Directed to Samsung’s Specific Intent to Induce Infringement ............. 3
`LEGAL STANDARDS ..................................................................................................... 3
`A.
`Exclusion of Opinions and Testimony Under the Daubert Standard ..................... 3
`B.
`Induced Infringement ............................................................................................. 4
`ARGUMENT ..................................................................................................................... 4
`A.
`Dr. Brown and Dr. LaViola’s Opinions and Testimony Regarding Third
`Party Applications Are Improper and Should Be Excluded .................................. 4
`1.
`Dr. Brown’s Testing Is Unreliable ............................................................. 4
`a.
`Dr. Brown Relied Upon Unreliable Sources of Data ..................... 4
`b.
`Dr. Brown’s Testing Analysis Rests on Unreliable
`Principles and Methods and Insufficient Facts and Data ............... 6
`Dr. Brown’s Conclusions Regarding the Testing of Star
`Walk 2 Are Unreliable ................................................................... 8
`Dr. Brown Failed to Analyze Source Code for All Tested
`Apps ............................................................................................... 9
`The Tested Google Maps Application Likely Was Not
`Preinstalled by Samsung ................................................................ 9
`Dr. Brown Is Not Qualified to Provide an Expert Opinion on What
`Android Application Developers Would Likely Have Done ................... 10
`Dr. LaViola’s and Dr. Brown’s Opinions and Testimony Regarding
`Alleged Benefits to Users Provided by the Patents-in-Suit Are Improper
`and Should Be Excluded ...................................................................................... 11
`Dr. LaViola’s and Dr. Brown’s Opinions and Testimony Regarding
`Alleged Intent to Induce Infringement Are Improper and Should Be
`Excluded .............................................................................................................. 13
`CONCLUSION ................................................................................................................ 15
`
`2.
`
`B.
`
`C.
`
`c.
`
`d.
`
`e.
`
`-i-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 319 Filed 02/08/19 Page 3 of 21 PageID #: 16404
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`Cases
`
`Advanced Tech. Incubator, Inc. v. Sharp Corp.,
`No. 5:09-CV-00135, 2010 U.S. Dist. LEXIS 30832 (E.D. Tex. Mar. 22, 2010) ..............11, 12
`
`Daubert v. Merrell Dow Pharms., Inc.,
`509 U.S. 579 (1993) ...............................................................................................................3, 4
`
`DSU Med. Corp. v. JMS Co.,
`471 F.3d 1293 (Fed. Cir. 2006)..................................................................................................4
`
`Goodman v. Harris Cty.,
`571 F.3d 388 (5th Cir. 2009) ...................................................................................................11
`
`Grdinich v. Bradlees,
`187 F.R.D. 77 (S.D.N.Y. 1999) ...............................................................................................12
`
`Huss v. Gayden,
`571 F.3d 442 (5th Cir. 2009) .....................................................................................................7
`
`Lasorsa v. Showboat: The Mardi Gras Casino,
`No. 07–4321 (JBS/JS), 2009 WL 2929234 (D.N.J. Sept. 9, 2009) .........................................12
`
`Network-1 Techs. v. Alcatel-Lucent USA, Inc.,
`No. 6:11-cv-492-RWS, 2017 U.S. Dist. LEXIS 154434 (E.D. Tex. Sept. 21,
`2017) ..............................................................................................................................4, 13, 14
`
`Nunn v. State Farm Mut. Auto. Ins. Co.,
`No. 3:08-CV-1486-D, 2010 WL 2540754 (N.D. Tex. June 22, 2010) ....................................12
`
`Orthoflex, Inc. v. ThermoTek, Inc.,
`986 F. Supp. 2d 776 (N.D. Tex. 2013) ..............................................................................14, 15
`
`Power Integrations Inc. v. Fairchild Semiconductor Int’l, Inc.,
`711 F.3d 1348 (Fed. Cir. 2013)..................................................................................................5
`
`Retractable Techs., Inc. v. Abbott Labs., Inc.,
`No. 5:05-CV-157, 2010 U.S. Dist. LEXIS 152797 (E.D. Tex. June 18, 2010) ...................4, 14
`
`Sundance, Inc. v. DeMonte Fabricating Ltd.,
`550 F.3d 1356 (Fed. Cir. 2008)..................................................................................................3
`
`U.S. v. Valencia,
`600 F.3d 389 (5th Cir. 2010) .....................................................................................................7
`
`-ii-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 319 Filed 02/08/19 Page 4 of 21 PageID #: 16405
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Williams v. Briggs Co.,
`62 F.3d 703 (5th Cir. 1995) .....................................................................................................10
`
`Rules
`
`Fed. R. Evid. 702 .......................................................................................................................4, 13
`
`-iii-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 319 Filed 02/08/19 Page 5 of 21 PageID #: 16406
`
`
`CyWee’s experts Dr. Joseph LaViola and Dr. Donald Brown offer opinions regarding
`
`(1) functionality of third-party applications based on Dr. Brown’s testing; (2) benefits of
`
`improvements to accuracy allegedly provided by U.S. Patent Nos. 8,441,438 (the “’438 Patent”)
`
`and 8,552,978 (the “’978 Patent”) (collectively, the “Patents-in-Suit”) over prior approaches; and
`
`(3) Samsung’s alleged intent to induce infringement. However, neither Dr. LaViola nor Dr.
`
`Brown is qualified to offer opinions on those issues, and their opinions on those issues are not
`
`based on reliable principles or methods. Accordingly, those opinions should be excluded for
`
`failing to meet the standard of admissibility for expert opinion testimony.
`
`I.
`
`BACKGROUND
`A.
`
`Opinions Based on Testing of Third-Party Applications
`
`In Dr. Brown’s expert report, he provides opinions relating to the testing of third-party
`
`applications installed on the Accused Products,1 namely Star Walk 2, Google Maps, Pokémon
`
`Go, and Shooting Showdown (collectively, the “Tested Apps”). He opines that the Tested Apps
`
`may access the base sensors, which are inertial or motion sensors, or composite sensors in the
`
`Accused Products. Ex. 1 ¶¶ 37–38, 44, 79, 87, 92, 96. He explains that he used the “Android
`
`Debug Bridge” (“ADB”) tool to run “adb shell dumpsys sensorservice,” which “can be used to
`
`obtain details about the base and composite sensors available on an Android device . . . .” Id.
`
`¶¶ 58, 59.
`
`Dr. LaViola states that he reviewed Dr. Brown’s report and relies on Dr. Brown’s
`
`opinions and testing to opine that each of the Tested Apps, when run on the Accused Products,
`
`infringes the Patents-in-Suit. Ex. 2 ¶¶ 58–60.
`
`
`1 Accused Products refers to all Samsung devices that CyWee accuses of infringing the Patents-
`in-Suit in this case.
`
`-1-
`
`

`

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`
`B.
`
`Opinions Directed to the Usefulness of the Claimed Inventions
`
`In Dr. LaViola’s expert report regarding infringement, he opines that “[t]he teachings of
`
`the patents-in-suit provide a user with an accurate indication regarding what direction the user is
`
`facing in real-time.” Ex. 2 ¶ 60. To show the advantages allegedly provided by the Patents-in-
`
`Suit, Dr. LaViola refers to “the benefits of more accurate orientation” in the context of artificial
`
`reality (AR) and virtual reality (VR) applications:
`
`As an example of the benefits of more accurate orientation, gaming applications
`that can be installed on Samsung’s Accused Products can use the orientation
`information to simulate racing and AR and VR. In racing games, a gamer can use
`the phone to move around to control a car driving or a plane flying and map those
`orientations to the vehicle in the game, thereby improving the gamer’s experience.
`In VR, more accurate orientation is essential for tracking the user’s head
`movement. A more accurate orientation ensures the correct viewing perspective to
`the user and allows a user to experience a 3D object and see different aspects of
`an object in AR when moving the phone. This provides the user with a more
`realistic experience.
`
`Id.
`
`However, Dr. LaViola testified that he had not tested any application. Ex. 3 at 102:2–8.
`
`He also admitted he had not “performed any analysis of the claimed methods in the asserted
`
`patents . . . against other noninfringing methods of sensor fusion,” id. at 78:2–8, and that he does
`
`not have knowledge of any accuracy improvement the claimed methods provide over prior art
`
`methods, if any at all. Id. at 78:9–19.
`
`Dr. Brown describes testing he performed on applications that allegedly use an output
`
`generated by the sensor fusion algorithm used on the Accused Products. Ex. 1 ¶¶ 58–96. Like Dr.
`
`LaViola, however, Dr. Brown admitted that he did not perform any testing that would allow him
`
`to determine the accuracy improvement provided by the claimed methods over prior art methods.
`
`Ex. 4 at 180:1–17.
`
`-2-
`
`

`

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`
`C.
`
`Opinions Directed to Samsung’s Specific Intent to Induce Infringement
`
`Dr. LaViola alleges that Samsung had the specific intent to induce infringement:
`
`Samsung provides users with instructions for running Google Maps with the
`intent that the Accused Products be used in a manner that infringes the patents-in-
`suit and with knowledge that each of its products are used in a manner that
`infringes the patents-in-suit.
`
`Ex. 2 ¶ 61. Likewise, Dr. LaViola opined that Samsung induced infringement based on the
`
`Google Play Store and Galaxy Apps store:
`
`Samsung also provides users with instructions for using preinstalled stores
`(Google Play Store and Galaxy Apps store) with the intent and understanding that
`users will install apps that infringe the patents-in-suit when run on the Accused
`Products, such as but not limited to those described above and in Dr. Brown’s
`report.
`
`Id. Dr. LaViola and Dr. Brown admitted they are not lawyers and do not have any legal
`
`expertise. Id. ¶ 15; Ex. 9 ¶ 7.
`
`Dr. LaViola testified that he “[could not] speak necessarily to the legal definition of
`
`specific intent.” Ex. 3 at 111:5–6. He stated, however, that he is qualified to opine on Samsung’s
`
`alleged intent to induce infringement based on his own “common sense.” Id. at 112:9–11. Dr.
`
`Brown did not opine regarding Samsung’s alleged intent, but he stated that he “reviewed the
`
`induced infringement analysis section” in Dr. LaViola’s report and “agree[s] with the opinions
`
`provided and evidence cited therein.” Ex 9 ¶ 58.
`
`II.
`
`LEGAL STANDARDS
`A.
`
`Exclusion of Opinions and Testimony Under the Daubert Standard
`
`“Expert evidence can be both powerful and quite misleading.” Daubert v. Merrell Dow
`
`Pharms., Inc., 509 U.S. 579, 595 (1993) (citation omitted). Thus, district courts “are charged
`
`with a ‘gatekeeping role,’ the objective of which is to ensure that expert testimony admitted into
`
`evidence is both reliable and relevant.” Sundance, Inc. v. DeMonte Fabricating Ltd., 550
`
`-3-
`
`

`

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`
`F.3d 1356, 1360 (Fed. Cir. 2008); Daubert, 509 U.S. 597. Federal Rule of Evidence 702
`
`provides that a witness who is “qualified . . . by knowledge, skill, experience, training, or
`
`education[,]” may provide opinion testimony if that testimony will assist the trier of fact and “(b)
`
`the testimony is based upon sufficient facts or data; (c) the testimony is the product of reliable
`
`principles and methods; and (d) the [witness] has reliably applied the principles and methods to
`
`the facts of the case.” Fed. R. Evid. 702.
`
`B.
`
`Induced Infringement
`
`To prove induced infringement, a plaintiff carries the burden of establishing that “the
`
`defendant possessed specific intent to encourage another’s infringement and not merely that the
`
`defendant had knowledge of the acts alleged to constitute inducement.” DSU Med. Corp. v. JMS
`
`Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006) (citation omitted). It is improper for an expert to opine
`
`on a party’s subjective intent. Retractable Techs., Inc. v. Abbott Labs., Inc., No. 5:05-CV-157,
`
`2010 U.S. Dist. LEXIS 152797, at *20 (E.D. Tex. June 18, 2010). “The question of intent is a
`
`classic jury question and not one for the experts.” Id. Applying the Daubert standard, this Court
`
`has found that it is improper for a technical expert to opine on a party’s subjective intent.
`
`Network-1 Techs. v. Alcatel-Lucent USA, Inc., No. 6:11-cv-492-RWS, 2017 U.S. Dist.
`
`LEXIS 154434, at *20 (E.D. Tex. Sept. 21, 2017).
`
`III. ARGUMENT
`A.
`
`Dr. Brown and Dr. LaViola’s Opinions and Testimony Regarding Third
`Party Applications Are Improper and Should Be Excluded
`1.
`
`Dr. Brown’s Testing Is Unreliable
`
`a.
`
`Dr. Brown Relied Upon Unreliable Sources of Data
`
`Dr. Brown tested a number of Samsung devices by downloading Star Walk 2, Pokémon
`
`Go, and Shooting Showdown from the Google Play Store. Ex. 4 at 110:22–112:1. Google Maps
`
`-4-
`
`

`

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`was already installed on the devices. Id. Dr. Brown admitted he obtained those devices not from
`
`Samsung or an authorized reseller, but instead indirectly from eBay or CyWee’s counsel (neither
`
`of which are authorized resellers). Ex. 4 at 120:12–15; see also Ex. 5. In Power Integrations Inc.
`
`v. Fairchild Semiconductor International, Inc., the Federal Circuit considered the reliability of
`
`documents relied upon by an expert to estimate a defendant’s worldwide sales. 711 F.3d 1348
`
`(Fed. Cir. 2013). “When asked whether the provider of the documents ‘found them off the
`
`internet,’” the expert could only say he assumed so. Id. at 1373. The court held that “while an
`
`expert’s data need not be admissible, the data cannot be derived from a manifestly unreliable
`
`source.” Id. The court found the source of the expert’s data (i.e., presumably “off the internet”)
`
`to be unreliable and excluded his opinion. Id. at 1373–74.
`
`Like the expert in Power Integrations, Dr. Brown obtained certain Samsung devices he
`
`tested “off the internet” from a website that is not an authorized reseller. A search for “Samsung
`
`Phones” on eBay shows that most, if not all, available devices are “used” or “refurbished.” Ex. 6.
`
`As in Power Integrations, this first source of Dr. Brown’s data is manifestly unreliable. The
`
`other Samsung devices he tested were from CyWee’s counsel, yet Dr. Brown provides no
`
`evidence, and does not represent, that the devices provided to him were new devices obtained
`
`directly from Samsung (or an authorized reseller) and were not modified in a way that might
`
`affect the accused functionality germane to his testing. This second source of Dr. Brown’s data is
`
`also manifestly unreliable. As Dr. Brown does not provide any facts or data establishing the
`
`origin and chain of custody of the Samsung devices he tested sufficient to demonstrate the
`
`reliability of his testing, his opinions and related testimony in that regard are necessarily
`
`unreliable and should be excluded.
`
`-5-
`
`

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` 16411
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`b.
`
`Dr. Brown’s Testing Analysis Rests on Unreliable Principles and
`Methods and Insufficient Facts and Data
`
`Dr. Brown highlights that the output of the ADB tool identifies certain accused sensors as
`
`“status: active” while the Tested Apps are being run. Ex. 1 ¶¶ 67, 68, 77, 84, 85, 89, 90, 94, 95.
`
`Based solely on that information, Dr. Brown concluded that the tested devices provided the
`
`Tested Apps with data from accused composite sensors. Id. ¶¶ 79, 87, 92, 96. However, Dr.
`
`Brown could only speculate as to the meaning of “active” in the “status: active” output from the
`
`ADB tool. When asked how he knew what “active” meant, instead of referring to any knowledge
`
`of the ADB tool and its output, he stated that he derived the meaning of “active” after the fact by
`
`correlating the Star Walk 2 source code he analyzed with the ADB output generated while
`
`testing the Star Walk 2 application:
`
`Q. How do you know that your description of why they’re listed as active is
`accurate?
`
`A. I’ve analyzed the Star Walk 2 code, and I know exactly what it does. It
`registers these five sensors. These are exactly the five sensors that are active and
`that are associated with Star Walk 2 code. So I have the source code, I have the
`application running, and the Android debug test. Everything is completely
`consistent. So the code is the code, the test is the test. It’s all consistent and
`accurate. And my understanding is based on all of that.
`
`Ex. 4 at 137:5–137:16 (emphasis added). In other words, he could only derive an understanding
`
`of “status: active” by speculating that because the sensors reported by the ADB tool correlated
`
`with his analysis of the source code for Star Walk 2, he could explain what the ADB output
`
`meant. Such an analysis is flawed and unreliable.
`
`A proper, reliable analysis would have begun with an understanding of what the output of
`
`the ADB tool (e.g., “status: active”) means. Next, applying the ADB tool to a tested application
`
`and observing the ADB output would show what the application is doing. Dr. Brown flips this
`
`analysis on its head. He first analyzed the Star Walk 2 source code, then applied the ADB tool to
`
`-6-
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`

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`the Star Walk 2 application and observed the output. He then assumed the source code would
`
`cause a certain ADB output, and then finally speculated about the meaning of the ADB output he
`
`observed by correlating it to the source code he analyzed. This improperly substitutes correlation
`
`for causation. See U.S. v. Valencia, 600 F.3d 389, 425 (5th Cir. 2010) (“Evidence of mere
`
`correlation, even a strong correlation, is often spurious and misleading when masqueraded as
`
`causal evidence, because it does not adequately account for other contributory variables.”).
`
`While Dr. Brown may understand the Star Walk 2 source code well enough, he has no
`
`independent understanding of the ADB tool’s “status: active” output or how it relates to
`
`operation of the sensors in connection with Star Walk 2, other than his educated guesswork. As a
`
`result, the principles and methods Dr. Brown applied in this analysis are unreliable to
`
`demonstrate infringement by the Star Walk 2 application on the tested device.
`
`Dr. Brown’s reliance on insufficient facts and data further undermines his analysis. Dr.
`
`Brown’s expectation that the ADB output would correlate with his analysis of the source code is
`
`based on the premise that the source code he analyzed is the same source code used to compile
`
`the Star Walk 2 application he tested. But Dr. Brown admitted he has no basis for this
`
`assumption—he admitted he did not know whether the Star Walk 2 code he analyzed was ever
`
`compiled and executed in a publically released version of the Star Walk 2 application, let alone
`
`whether the version of the Star Walk 2 code he analyzed actually corresponded to the version of
`
`the Star Walk 2 application he tested. Ex. 4 at 125:4–16; 126:7–127:21. Dr. Brown did not even
`
`know which version of Star Walk 2 he tested. Id. at 125:4–16. As a result, Dr. Brown had no
`
`reliable basis to assume the ADB output he observed has any connection to the Star Walk 2 code
`
`he analyzed. See Huss v. Gayden, 571 F.3d 442, 459 (5th Cir. 2009) (“Any scientist or
`
`statistician must acknowledge, however, that correlation is not causation.”). Yet Dr. Brown
`
`-7-
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`

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` 16413
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`relied on that assumption as the basis for his speculation about the meaning of the ADB output
`
`and, from there, for his opinion on alleged infringement.
`
`Without having analyzed any source code for the other Tested Apps (i.e., Google Maps,
`
`Pokémon Go, and Shooting Showdown), Dr. Brown applied his unreliable speculation about
`
`what the ADB output “status: active” means to each of the other Tested Apps to draw the same
`
`unreliable conclusions. He simply ran the other Tested Apps with the ADB tool and concluded
`
`that the similar ADB output showed that the other Tested Apps also accessed the accused sensor
`
`fusion source code in the same way as Star Walk 2. Ex. 1 ¶¶ 67, 68, 77, 84, 85, 89, 90, 94, 95.
`
`Dr. Brown admits he does not have a factual basis to support his belief that the Tested Apps use
`
`data from the accused sensor fusion source code. Despite his reliance on the ADB tool and his
`
`allegation that it shows which sensors are “active,” he admits that an application developer could
`
`have written his own (potentially non-infringing) sensor fusion code using the three “active”
`
`individual sensor outputs. Ex. 4 at 205:2–16; 144:20–145:3; 202:18–205:1. Therefore, Dr.
`
`Brown does not know whether the accused sensor fusion code output is actually used by the
`
`Tested Apps in the devices he tested.
`
`Accordingly, Dr. Brown’s opinions are based on unreliable principles and methods, rely
`
`on insufficient facts and data, and are not reliably applied to the facts of this case to show use of
`
`the accused sensor fusion code sufficient to demonstrate infringement by the Tested Apps. His
`
`opinions and testimony in this regard and opinions derived therefrom should be excluded for this
`
`reason.
`
`c.
`
`Dr. Brown’s Conclusions Regarding the Testing of Star Walk 2
`Are Unreliable
`
`Dr. Brown relies on the reviewed source code to demonstrate that the registration and
`
`potential use of allegedly infringing sensors (Ex. 1 ¶ 63) reflects a “map[ping] from a quaternion
`
`-8-
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`

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` 16414
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`to a rotation matrix, and then from a rotation matrix to yaw, pitch, and roll . . . .” Ex. 4 at 104:1–
`
`25. But as explained above, Dr. Brown ultimately has no factual basis to conclude that the Star
`
`Walk 2 source code he analyzed was the same source code underlying the Star Walk 2
`
`application he tested. Accordingly, because he has no basis for a causal link between the Star
`
`Walk 2 source code he analyzed and the Star Walk 2 application he tested, Dr. Brown’s testing
`
`and analysis of Star Walk 2 and any opinions derived therefrom should be excluded as
`
`unreliable, irrelevant, and not helpful to the trier of fact.
`
`d.
`
`Dr. Brown Failed to Analyze Source Code for All Tested Apps
`
`Dr. Brown admitted that he did not review any source code for the Google Maps,
`
`Pokémon Go, and Shooting Showdown applications. Ex. 4 at 33:24–34:7. He therefore could not
`
`confirm what functions those other Tested Apps may have called—including the accused sensor
`
`fusion code. Id. at 106:22–107:12. Therefore, he could not be sure that those other Tested Apps
`
`did not implement non-infringing sensor fusion code. Accordingly, Dr. Brown’s testing of
`
`Google Maps, Pokémon Go, and Shooting Showdown cannot be relied upon to demonstrate
`
`infringement, because it is not reliably applied to the facts of this case to show actual execution
`
`of the accused sensor fusion code by these Tested Apps. His opinions and testimony in this
`
`regard and any opinions derived therefrom should therefore also be excluded as unreliable,
`
`irrelevant, and not helpful to the trier of fact.
`
`e.
`
`The Tested Google Maps Application Likely Was Not Preinstalled
`by Samsung
`
`Dr. Brown testified that one of the Tested Apps, Google Maps, was already installed on
`
`the Samsung devices he tested. Ex. 4 at 110:22–112:1. But Dr. Brown readily admitted that “the
`
`version of Google Maps that [he] tested is probably an updated version from the version that
`
`originally shipped with the phone.” Id. at 145:16–146:8. CyWee has never made any effort,
`
`-9-
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`

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` 16415
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`however, to show that the tested version of Google Maps is representative of the version
`
`preinstalled by Samsung. As a result, Dr. Brown’s testing of an unknown, likely updated version
`
`of Google Maps cannot be relied upon to demonstrate infringement by the Samsung-preinstalled
`
`version. See Williams v. Briggs Co., 62 F.3d 703, 707–08 (5th Cir. 1995) (excluding expert
`
`testimony finding that the proponent of the testing could not sustain its burden to demonstrate
`
`that at the time of the testing, the device in question was in substantially the same condition as at
`
`the time of the incident, as various repairs had been made to the device since the time of the
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`incident). This warrants exclusion of Dr. Brown’s opinions and testimony related to testing of
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`Google Maps and opinions derived therefrom, as unreliable, irrelevant, and not helpful to the
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`trier of fact.
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`2.
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`Dr. Brown Is Not Qualified to Provide an Expert Opinion on What
`Android Application Developers Would Likely Have Done
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`In both of his expert reports (and in his deposition), Dr. Brown speculated about what
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`Android application developers would have done to support his assertions that third-party
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`applications use the accused algorithms and practice the asserted claims. These assertions have
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`no factual support. For example, Dr. Brown stated that “[i]t is [his] opinion that Android app
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`developers writing applications to access one or more [sensors] would do so through Android’s
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`standard and well-documented SensorManager API.” Ex. 1 ¶ 97 (emphasis added). When
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`asked whether the applications could perform sensor fusion on their own, he opined, “[i]t’s
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`possible, but it would be a better use of the application developer’s time to probably take
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`advantage of the available sensor fusion algorithms already present on the device.” Ex. 4
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`at 144:20–145:3 (emphasis added). He never spoke with the Star Walk 2 developers. Id.
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`at 127:9–11. Thus, when asked whether the Star Walk 2 source code he analyzed corresponds to
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`any compiled, publicly available application, he was forced to speculate: “I would say it’s
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`extremely likely that the code was in the Star Walk 2 application . . . and I would say it’s quite
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`likely that that code is still in the application.” Id. at 126:19–127:5 (emphasis added). He offered
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`no affirmative support for his beliefs, just more speculation: “I don’t know why the Star Walk 2
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`developer would write that code if they weren’t going to make the application publicly
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`available.” Id. at 126:24–127:1.
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`Dr. Brown has no particular expertise regarding the practices and motivations of Android
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`application developers on which to base these opinions. Nothing in his expert reports (including
`
`his CV) reflects experience relating to Android application development. Ex. 1 ¶¶ 3–10; Ex. 8.
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`Regarding his testing procedure, he stated that he had to download the ADB tool, despite
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`describing it as “one of their primary tools for Android development.” Ex. 4 at 122:14–24. Dr.
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`Brown even admitted unfamiliarity with some of the Android applications he tested, including
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`Pokémon Go. Id. at 150:8–18; 151:11–152:10. As a result, his opinions regarding what an
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`Android application developer likely would have done are speculative and not based on any
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`expertise in the subject matter. Before expert testimony can be admitted, the proponent of the
`
`testimony must establish that the expert is qualified in the area of expertise at issue. See, e.g.,
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`Advanced Tech. Incubator, Inc. v. Sharp Corp., No. 5:09-CV-00135, 2010 U.S. Dist.
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`LEXIS 30832, at *5 (E.D. Tex. Mar. 22, 2010); see also Goodman v. Harris Cty., 571 F.3d 388,
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`399 (5th Cir. 2009) (an expert may not go beyond the scope of his expertise in giving his
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`opinion). Accordingly, Dr. Brown’s opinions and testimony relating to what Android application
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`developers likely would have done should be excluded.
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`B.
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`Dr. LaViola’s and Dr. Brown’s Opinions and Testimony Regarding Alleged
`Benefits to Users Provided by the Patents-in-Suit Are Improper and Should
`Be Excluded
`
`Dr. LaViola opines—and Dr. Brown agrees—that the orientation calculations enabled by
`
`the sensor fusion methods allegedly described in the Patents-in-Suit offer a demonstrable
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`advantage to consumers using AR and VR applications on Samsung’s Accused Products. Those
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`opinions are unfounded, lack any reliable basis, and should be excluded.
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`To the extent CyWee argues that these opinions relate to technical issues, Dr. LaViola’s
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`and Dr. Brown’s opinions consist of nothing more than unsubstantiated speculation. Expert
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`opinions must be the product of reliable principles and methods. Indeed, a number of courts have
`
`rejected experts’ opinions based on their failure to offer an adequate explanation of the objective
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`methodology they used to arrive at their opinions. See, e.g., Nunn v. State Farm Mut. Auto. Ins.
`
`Co., No. 3:08-CV-1486-D, 2010 WL 2540754, at *2 (N.D. Tex. June 22, 2010); Lasorsa v.
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`Showboat: The Mardi Gras Casino, No. 07–4321 (JBS/JS), 2009 WL 2929234, at *4–5 (D.N.J.
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`Sept. 9, 2009); Grdinich v. Bradlees, 187 F.R.D. 77, 81–82 (S.D.N.Y. 1999). Dr. LaViola and
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`Dr. Brown provided no objective basis for their opinions on the alleged benefits of accuracy
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`improvements provided by the claimed methods over prior art methods. They admit that they did
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`not conduct any tests to determine the accuracy improvements allegedly made possible by the
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`claimed sensor fusion algorithms over any other sensor fusion algorithm. Ex. 3 at 78:2–19;
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`102:2–8; Ex. 4 at 180:1–17. Neither provided any facts or data regarding the alleged accuracy
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`improvements or benefits to end users, let alone quantifiable facts or data sufficient to support a
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`reliable expert opinion. Indeed, neither provided any facts or data to demonstrate that users of the
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`Accused Products would notice the alleged accuracy improvements.
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`If CyWee instead contends these opinions relate to business issues, Dr. LaViola and Dr.
`
`Brown are not qualified experts. Before expert testimony can be admitted, the proponent of the
`
`testimony must establish that the expert is qualified in the area of expertise at issue. See, e.g.,
`
`Advanced Tech. Incubator, 2010 U.S. Dist. LEXIS 30832, at *5. Although CyWee states that Dr.
`
`LaViola and Dr. Brown have extensive technical backgrounds regarding sensor fusion
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`technologies, neither is qualified by knowledge, skill, experience, training, or education on how
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`to discern what features are valued by users of consumer electronics. Fed. R. Evid. 702. Indeed,
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`neither Dr. LaViola’s nor Dr. Brown’s curriculum vitae discloses any experience related to
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`evaluating consumer electronics users’ opinions. Ex. 7; Ex. 8. While Dr. LaViola alleges that the
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`improved accuracy made p