Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 1 of 11 PageID #: 16717
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`§
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S MOTION TO STRIKE AND EXCLUDE
`IMPROPER OPINIONS AND TESTIMONY OF PLAINTIFF’S EXPERT
`MR. SCOTT STEINBERG
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`NO. 2:17-CV-00140-WCB-RSP
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 2 of 11 PageID #: 16718
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`CyWee’s expert Mr. Scott Steinberg offers opinions regarding (1) the technology that is
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`claimed in U.S. Patent Nos. 8,441,438 (the “’438 Patent”) and 8,552,978 (the “’978 Patent”) (the
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`“Patents-in-Suit”); (2) the alleged value of that claimed technology in the market place; and (3)
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`the alleged value of sensor fusion technology generally in the market place. As Mr. Steinberg’s
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`opinions do not meet the standard of admissibility for expert testimony, the Court should strike
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`and exclude those opinions, the opinions of any other CyWee experts that rely thereon, and any
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`related testimony by Mr. Steinberg or any other CyWee experts.
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`I.
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`BACKGROUND
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`Mr. Steinberg is a purported expert “in the area of mobile apps, including games,” and
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`states that he was retained to “evaluate and opine on the technology described and claimed in
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`CyWee’s patents[.]” Ex. 1 ¶¶ 1–2. In particular, he states that he was asked to offer opinions “on
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`the technology described and claimed in the patents-in-suit, specifically motion sensor fusion
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`technology, and in particular, . . . on the importance of the technology in the smartphone and
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`tablet industry and the mobile apps and video games industries.” Id. ¶ 3.
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`Throughout his report, Mr. Steinberg offers opinions on what the Patents-in-Suit claim
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`and the importance of this patented technology. For example, Section 11 of his report is titled
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`“Claimed Technology and Potential Uses,” and provides his descriptions of the Patents-in-Suit.
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`Id. at ¶¶ 29–31. Section 12 of his report is titled “Importance of Claimed Technology to Mobile
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`Games and Apps,” and describes how alleged “orientation information provided by the claimed
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`inventions of the [Patents-in-Suit] are applicable to a wide array of uses.” Id. at ¶¶ 32–48. Mr.
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`Steinberg confirmed in his deposition that “throughout the report” he discusses the value of the
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`particular motion sensor approach of the Patents-in-Suit. Ex. 2 at 59:12–14. Mr. Steinberg also
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`confirmed that he opines in his report on the value of sensor fusion technology generally. Id. at
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`38:5–9; 57:8–58:20.
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 3 of 11 PageID #: 16719
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`II.
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`LEGAL STANDARD
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`“Expert evidence can be both powerful and quite misleading.” Daubert v. Merrell Dow
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`Pharms., Inc., 509 U.S. 579, 595 (1993) (citation omitted). Thus, district courts “are charged
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`with a ‘gatekeeping role,’ the objective of which is to ensure that expert testimony admitted into
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`evidence is both reliable and relevant.” Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d
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`1356, 1360 (Fed. Cir. 2008); Daubert, 509 U.S. 597. Federal Rule of Evidence 702 provides that
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`a witness who is “qualified . . . by knowledge, skill, experience, training, or education[,]” may
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`provide opinion testimony if that testimony will assist the trier of fact and “(b) the testimony is
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`based upon sufficient facts or data; (c) the testimony is the product of reliable principles and
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`methods; and (d) the [witness] has reliably applied the principles and methods to the facts of the
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`case.” Fed. R. Evid. 702.
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`III. ARGUMENT
`A. Mr. Steinberg Is Not Qualified to Render Opinions Regarding What Is
`Described and Claimed in the Patents-in-Suit
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`In his expert report and in his deposition, Mr. Steinberg provided his opinions on what is
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`described and claimed in the Patents-in-Suit. Mr. Steinberg, however, is not properly qualified to
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`opine on what is described and claimed in the Patents-in-Suit, nor does he rely on any expertise
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`and experience that could have given him this understanding. Accordingly, his opinions are mere
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`lay opinions and should be excluded.
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`At Mr. Steinberg’s deposition, CyWee’s counsel “objected” that Mr. Steinberg is “not an
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`engineer. He’s not an expert in this field, and asking him to interpret the [‘438 Patent] is a waste
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`of time.” Ex. 2 at 32:9–13. Mr. Steinberg admitted, “[M]y area of expertise isn’t in interpreting
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`patents.” Id. at 20:2–3. Mr. Steinberg confirmed that his understanding of what is claimed in the
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`Patents-in-Suit is merely “a layman’s understanding.” Id. at 54:21–25. Indeed, Mr. Steinberg
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 4 of 11 PageID #: 16720
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`does not have a technical degree of any kind. Id. at 65:9–10. He does not have any professional
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`experience as an engineer, has never written any code related to sensor fusion, and when asked
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`whether he had any experience in sensor fusion technology, he responded that he had published
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`games he “imagined” combined “data from different sensors.” Id. at 65:22–66:16; Ex. 3. It is
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`unclear whether he even read the Patents-in-Suit in their entirety. See Ex. 2 at 19:11–16 (“I read
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`as much as I could understand. I don’t have expertise in this area.”).
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`Mr. Steinberg does not rely on any expertise or experience that could reasonably inform
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`his understanding of “the technology described and claimed in” the Patents-in-Suit. Indeed, he
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`confirmed that the only technical expertise he relied on for understanding the Patents-in-Suit is
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`the expert report of Dr. Richard Brown. Ex. 2 at 24:8–26:8; 54:8–13. Dr. Brown authored three
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`reports in this case: one on October 8, 2018, another on October 22, 2018, and a final rebuttal
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`report on December 3, 2018. The only one of these reports that was available as of the date Mr.
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`Steinberg submitted his report was the October 8 report. That report, however, does not purport
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`to describe the Patents-in-Suit or their claims. Ex. 4. Mr. Steinberg did not speak to CyWee’s
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`other technical expert Dr. Joseph LaViola or cite to his expert report. Ex. 2 at 28:16–17.
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`The only other materials Mr. Steinberg looked at to understand the Patents-in-Suit are
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`cited in his own report. Ex. 2 at 25:15–19; 54:8–19. These are likewise insufficient to give Mr.
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`Steinberg an understanding of the Patents-in-Suit. See “Facts and Data Considered” Ex. 1 ¶ 20.
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`The materials considered include the Patents-in-Suit, one short excerpt from the deposition of
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`Samsung’s witness Seongsig Kang, and both volumes of the deposition of Samsung’s corporate
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`representative Gongbo Moon. Mr. Steinberg also discussed the Patents-in-Suit with CyWee’s
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`attorneys. Ex. 2 at 27:1–5. None of these individuals are technical experts. Given that Dr. Brown
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`is the only technical expert Mr. Steinberg relies on for his understanding of the Patents-in-Suit,
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 5 of 11 PageID #: 16721
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`and since Dr. Brown’s October 8 report does not purport to describe the Patents-in-Suit or their
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`claims, Mr. Steinberg’s understanding is solely his own (apart from what he may have been told
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`by CyWee’s attorneys). Mr. Steinberg is not qualified to render such opinions.
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`Before expert testimony can be admitted, the proponent of the testimony must establish
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`that the expert is qualified in the area of expertise at issue. See, e.g., Advanced Tech. Incubator,
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`Inc. v. Sharp Corp., No. 5:09-CV-00135, 2010 U.S. Dist. LEXIS 30832, at *5 (E.D. Tex. Mar.
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`22, 2010); see also Goodman v. Harris Cty., 571 F.3d 388, 399 (5th Cir. 2009) (an expert may
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`not go beyond the scope of his expertise in giving his opinion). Mr. Steinberg is not qualified to
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`render opinions on what is described and claimed in the Patents-in-Suit, as evidenced by his own
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`admissions and those of CyWee’s counsel. Although an expert may rely on admissible opinion
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`testimony from another expert as factual support for his or her own opinion, see Apple Inc. v.
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`Motorola, Inc., 757 F.3d 1286, 1320–22 (Fed. Cir. 2014), that does not save Mr. Steinberg’s
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`unqualified opinions. The only other expert opinion he relied upon is set forth in Dr. Brown’s
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`October 8 report. That report, however, does not describe the Patents-in-Suit, let alone what they
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`claim. Accordingly, Mr. Steinberg is wholly unqualified to render any opinion about what is
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`described and claimed in the Patents-in-Suit; his opinions are merely lay opinions that cannot
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`assist the trier of fact and should be excluded.
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`This Court has made clear that where experts are not qualified to render opinions and do
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`not adequately support their opinions, those opinions should be excluded. Erfindergemeinschaft
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`UroPep GbR v. Eli Lilly & Co., No. 2:15-CV-1202-WCB, 2017 WL 1050120 (E.D. Tex. Mar.
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`17, 2017). In Eli Lilly, this Court excluded an expert’s opinion where it found that he “does not
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`have the requisite experience or expertise to support such a claim.” Id. at *7. The Court further
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`noted that the references cited by the expert likewise did not support the expert’s conclusion. Id.
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 6 of 11 PageID #: 16722
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`This mirrors the situation at hand, where Mr. Steinberg does not have the requisite qualifications
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`to support his opinions, and Dr. Brown’s October 8 report to which he cites does not support his
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`conclusions. The Court should therefore strike and exclude Mr. Steinberg’s opinions on what is
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`described and claimed in the Patents-in-Suit.
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`B. Mr. Steinberg’s Opinions Regarding the Alleged Value of the Patented
`Technology Are Not Based on Sufficient Facts or Data
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`Mr. Steinberg’s opinions on the alleged importance of what he claims to be the patented
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`technology are based on his fatally flawed opinions on what is actually claimed in the Patents-in-
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`Suit. These opinions are therefore similarly improper. Since Mr. Steinberg is not qualified to
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`give opinions on what the Patents-in-Suit claim, his further opinions on the alleged value of the
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`patented technology should also be excluded.
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`Mr. Steinberg has not compared the particular claimed sensor fusion approach with any
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`prior art approaches. Ex. 2 at 60:5–24. As discussed in the motion to exclude the opinions of Dr.
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`LaViola and Dr. Brown filed concurrently herewith, Dr. Brown’s October 8 report also does not
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`opine on the alleged benefits of the patented technology as compared to prior art approaches. See
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`Motion to Exclude Improper Opinions and Testimony of Plaintiff’s Experts Dr. LaViola and Dr.
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`Brown. Thus, Mr. Steinberg confirmed he does not know how much the patented technology
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`improve the accuracy of applications. Ex. 2 at 91:14–19. Mr. Steinberg cannot reasonably opine
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`on the importance of the patented technology if he does not know what the Patents-in-Suit claim
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`and has not made any effort to compare it to the prior art. Mr. Steinberg’s opinions are therefore
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`merely conclusory, unqualified opinions that cannot assist the trier of fact and should be struck
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`and excluded. See Genband US LLC v. Metaswitch Networks Corp., No. 2:14-CV-33-JRG-RSP,
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`2016 WL 3475688, at *2 (E.D. Tex. Jan. 7, 2016) (“Conclusory opinions unsupported by ‘facts
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 7 of 11 PageID #: 16723
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`or data’ and based on no discernable ‘principles and methods’ are not admissible under Fed. R.
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`Evid. 702.”).
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`Further, only CyWee’s damages expert, Mr. Walter Bratic, references the opinions of Mr.
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`Steinberg. Ex. 12 ¶¶ 131–133, 141, 152, 154. Mr. Steinberg’s opinions, however, do not impact
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`Mr. Bratic’s reasonable royalty analysis. As discussed in a motion to exclude Mr. Bratic filed
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`concurrently herewith, his reasonable royalty opinions are based on the “price premium” from
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`the Conjoint Survey and his own arbitrary 50/50 split of the alleged incremental value of “Sensor
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`Fusion Technology.” See Motion to Exclude Opinions and Testimony of Walter Bratic. Since
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`Mr. Steinberg’s opinions are not relevant to alleged infringement or estimated damages, they will
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`not assist the trier of fact and should be excluded for this additional reason.
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`C. Mr. Steinberg’s Opinions Regarding the Value of Sensor Fusion Technology
`Generally Do Not Help the Trier of Fact to Determine a Fact in Issue
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`The only opinions remaining in Mr. Steinberg’s report are on the value of sensor fusion
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`technology generally. These opinions, however, are completely divorced from the claims of the
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`Patents-in-Suit, which cover a particular, “enhanced” sensor fusion approach. The ’438 Patent
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`acknowledges that sensor fusion using accelerometers and gyroscopes to calculate orientation
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`were known in the prior art, and that the patent relates to “an improved pointing device with [an]
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`enhanced calculating or comparison method . . . .” Ex. 5 at 2:38–3:15; 3:51–4:2 (emphasis
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`added). The prosecution history confirms this limited scope. During prosecution, the Applicant
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`consented to an Examiner’s Amendment to all independent claims to obtain allowance over the
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`prior art. Ex. 6. Specifically, the Examiner made clear that all of the limitations of every then-
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`pending independent claim were taught by the prior art, and thus the claims were not allowable
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`unless limitations were added requiring the “predicted measurements” to be obtained “based on
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`the first signal set without using any derivatives of the first signal set” and requiring the
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`“predicted axial accelerations” to be based on measured angular velocities “without using any
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`derivatives of the measured angular velocities . . . .” Ex. 7 at 2–12. The Applicant provided no
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`argument in response, effectively conceding that the then-pending claims were not allowable,
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`and agreed to make the requested amendments to obtain allowance.
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`The ’978 Patent is a continuation-in-part of a continuation-in-part of the’438 Patent, and
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`thus shares much of the same specification. Like the ’438 Patent, the ’978 Patent specification
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`acknowledges that sensor fusion approaches to calculate orientation were known in the prior art,
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`and that the patent relates to “an improved device with [an] enhanced calculating or comparison
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`method . . . .” Ex. 8 at 2:41–3:19; 3:53–4:11 (emphasis added). Indeed, the prior art cited by the
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`Applicant and listed on the face of both asserted patents includes U.S. Patent No. 7,414,611,
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`which is titled “3D Pointing Devices with Orientation Compensation and Improved Usability,”
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`and which discloses a “handheld system [that] senses motion using one or more sensors 901,
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`e.g., rotational sensor(s), gyroscopes(s), accelerometer(s), magnetometer(s), optical sensor(s),
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`camera(s) or any combination thereof.” Ex. 5 at 2:38–3:15; Ex. 8 at 2:41–3:19; see also Ex. 9 at
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`16:16–18:14.
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`CyWee’s expert Dr. LaViola confirmed in his expert report that “[t]he patents teach an
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`‘enhanced comparison method’ for fusing data from different sensors in order to minimize
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`errors and noises.” Ex. 10 ¶ 22 (emphasis added). Dr. LaViola further confirmed in deposition
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`that someone could use non-infringing sensor fusion algorithms (i.e., the patent claims do not
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`cover all sensor fusion algorithms or “Sensor Fusion Technology” generally). See Ex. 11 at
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`84:7–11.
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`The value of sensor fusion generally is not a fact in issue and opining on it will not help
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`the trier of fact. Mr. Steinberg’s opinions in this regard risk misleading the jury and confusing
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 9 of 11 PageID #: 16725
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`the issues since the jury would be led to erroneously apply Mr. Steinberg’s opinions about sensor
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`fusion generally to the particular flavor of sensor fusion actually claimed in the Patents-in-Suit.
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`Accordingly, Mr. Steinberg’s opinions and testimony on this matter should be excluded. Fed. R.
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`Evid. 702 (a). See Genband US LLC v. Metaswitch Networks Corp., No. 2:14-CV-33-JRG-RSP,
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`2016 WL 125503, at *4 (E.D. Tex. Jan. 9, 2016) (excluding expert testimony where it was not
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`relevant and “[a]dmitting such evidence carries with it a substantial risk of jury confusion”).
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`IV. CONCLUSION
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`For these reasons, Defendants respectfully request that the Court strike and exclude the
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`opinions of Mr. Steinberg related to (1) what is described and claimed in the Patents-in-Suit; (2)
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`the alleged value and/or importance of the claimed technology; and (3) the alleged value and/or
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`importance of sensor fusion technology generally, as these opinions do not meet the standards of
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`admissibility for expert testimony under Federal Rule of Evidence 702.
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 10 of 11 PageID #:
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` 16726
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`DATED: February 6, 2019
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`Respectfully submitted,
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`By: /s/ Elizabeth L. Brann
` Elizabeth L. Brann
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`Christopher W. Kennerly
`TX Bar No. 00795077
`chriskennerly@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Ave.
`Palo Alto, California 94304
`Telephone: (650) 320-1800
`Facsimile:
`(650) 320-1900
`
`Barry Sher (pro hac vice)
`NY Bar No. 2325777
`barrysher@paulhastings.com
`Zachary Zwillinger (pro hac vice)
`NY Bar No. 5071154
`zacharyzwillinger@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, New York 10166
`Telephone: (212) 318-6000
`Facsimile:
`(212) 319-4090
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`Elizabeth L. Brann (pro hac vice)
`CA Bar No. 222873
`elizabethbrann@paulhastings.com
`Ariell Bratton (pro hac vice)
`CA Bar No. 317587
`ariellbratton@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, California 92121
`Telephone: (858) 458-3000
`Facsimile:
`(858) 458-3005
`
`Melissa R. Smith
`TX Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`
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`Case 2:17-cv-00140-WCB-RSP Document 321 Filed 02/08/19 Page 11 of 11 PageID #:
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` 16727
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`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO., LTD AND
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rules CV-7(h) and (i), counsel for the Defendants met and conferred
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`with counsel for the Plaintiff on February 5, 2019 in a good faith attempt to resolve the matters
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`raised by this motion. No agreement could be reached. Plaintiff indicated it opposes the relief
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`requested by this motion. Thus, these discussions have conclusively ended in an impasse and
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`leave an open issue for the Court to resolve.
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`/s/ Elizabeth L. Brann
`Elizabeth L. Brann
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on February 6, 2019. As of this date, all
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`counsel of record had consented to electronic service and are being served with a copy of this
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`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A) and by email.
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`/s/ Elizabeth L. Brann
`Elizabeth L. Brann
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Court’s Protective Order entered in this matter.
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`/s/ Elizabeth L. Brann
`Elizabeth L. Brann
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