Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 1 of 21 PageID #: 14794
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
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` Plaintiff,
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`v.
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`HUAWEI DEVICE USA INC., et al.,
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` Defendants.
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`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
` Plaintiff,
`
`v.
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`APPLE INC.,
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` Defendant.
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`
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`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`§
`§
`§
`§
`§
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`§
`§
`§
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`
`Civil Action No. 2:17-CV-513-JRG
`(LEAD CASE)
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`
`
`Civil Action No. 2:17-CV-516-JRG
`(CONSOLIDATED CASE)
`
`DAUBERT MOTION TO EXCLUDE THE OPINIONS OF MR. ALAN RATLIFF
`RELATING TO DAMAGES
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
` Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., et al.,
`
` Defendants.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
` Plaintiff,
`
`v.
`
`APPLE INC.,
`
` Defendant.
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`
`
`
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`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Civil Action No. 2:17-CV-513-JRG
`(LEAD CASE)
`
`
`
`Civil Action No. 2:17-CV-516-JRG
`(CONSOLIDATED CASE)
`
`DAUBERT MOTION TO EXCLUDE THE OPINIONS OF MR. ALAN RATLIFF
`RELATING TO DAMAGES
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`
`
`
`
`
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`
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 2 of 21 PageID #: 14795
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`
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`I.
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`II.
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`TABLE OF CONTENTS
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`Pages
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`INTRODUCTION ...............................................................................................................1
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`ARGUMENT .......................................................................................................................3
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`A.
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`B.
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`C.
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`D.
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`Mr. Ratliff’s “Technical Apportionment” Is Arbitrary And Unsupported. .............4
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`Mr. Ratliff’s “Market Price” Of A Hypothetical App Is Unreliable. .......................8
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`1.
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`Mr. Ratliff Ignores The Fundamental Relationship Between Price
`And Demand. ...............................................................................................9
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`2.
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`Mr. Ratliff’s Hypothetical “Market Price” Is Unsupported .......................10
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`Mr. Ratliff’s
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` Is Arbitrary And Unreliable. .............13
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`The Entire Market Value Rule Does Not Permit Calculation Of Damages
`As A Percentage Of Profits. ...................................................................................14
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`III.
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`CONCLUSION ..................................................................................................................15
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`i
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 3 of 21 PageID #: 14796
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`
`
`Cases
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`TABLE OF AUTHORITIES
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`Pages
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`Daubert v. Merrell Dow Pharm., Inc.,
`509 U.S. 579 (1993) ............................................................................................................ 3
`
`Ericsson, Inc. v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014)........................................................................................... 4
`
`Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp., LLC,
`879 F.3d 1332 (Fed. Cir. 2018)........................................................................................... 8
`
`Finjan, Inc. v. Blue Coat Sys.,
`879 F.3d 1299 (Fed. Cir. 2018)........................................................................................... 4
`
`Kumho Tire Co. v. Carmichael,
`526 U.S. 137 (1999) ............................................................................................................ 3
`
`LaserDynamics, Inc. v. Quanta Computer, Inc.,
`694 F.3d 51 (Fed. Cir. 2012)................................................................................... 5, 14, 15
`
`ROY-G-BIV Corp. v. ABB, Ltd.,
`No. 6:11-cv-622, 2014 WL 12465449 (E.D. Tex. Aug. 1, 2014) ....................................... 5
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`Rules
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`Fed. R. Evid. 702 ............................................................................................................................ 3
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`ii
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 4 of 21 PageID #: 14797
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`TABLE OF EXHIBITS
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`Exhibit Number
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`Description
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`Ex. 1
`Ex. 2
`Ex. 3
`Ex. 4
`Ex. 5
`Ex. 6
`Ex. 7
`Ex. 8
`Ex. 9
`Ex. 10
`Ex. 11
`Ex. 12
`Ex. 13
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`Ratliff Damages Report
`Ratliff Workpaper 17
`Paul K Meyer Declaration
`McAlexander Infringement Report
`Ratliff Dep. Tr.
`Paul C Clark Declaration
`Apple Consumer Survey
`Beyer Dep. Tr. Vol. I
`Navin Suparna Dep. Tr.
`Ratliff Damages Report – Exhibit 2
`McAlexander Dep. Tr.
`Ratliff Workpaper 12
`Ratliff Workpaper 19
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`iii
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 5 of 21 PageID #: 14798
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`I.
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`INTRODUCTION
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`Plaintiff AGIS Software Development, Inc.’s (“AGIS”) damages expert, Alan Ratliff,
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`asserts that AGIS is entitled to
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` for the alleged infringement by two
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`software applications that Defendant Apple Inc. provides for free. To arrive at his damages figure,
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`Mr. Ratliff devised a
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` based on a string of flawed assumptions. Each step
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`of Mr. Ratliff’s damages model suffers from fundamental evidentiary flaws, thereby compounding
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`the problems with Mr. Ratliff’s inflated result. But in particular,
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`—are fatal to his entire damages determination.
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`In the first step of his analysis, Mr. Ratliff estimates the “market price” of a hypothetical
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`app to serve as a proxy for Apple’s Find My Friends and Find My iPhone applications (the
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`“Accused Apps”). To do so,
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`party apps that
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` Compared to third-
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` But basic rules of
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`economics dictate that consumers would not have bought and used the Accused Apps to the same
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`extent had Apple charged Mr. Ratliff’s inflated hypothetical app price instead of distributing them
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`1 The Find My Friends app allows users to use location-sharing features to find friends and family
`members on a digital map. Ex. 1 [Ratliff Rep.] ¶ 36. The Find My iPhone app allows users to
`locate a lost or stolen phone. Ex. 1 [Ratliff Rep.] ¶ 33.
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 6 of 21 PageID #: 14799
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`on Apple’s devices for free. In fact, because his analysis disregards ordinary laws of price and
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`demand, applying Mr. Ratliff’s hypothetical app price
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` Indeed,
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`Second, because Apple’s device users may never use pre-installed apps such as those
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`accused here, Mr. Ratliff estimates usage. According to Mr. Ratliff,
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`has significant flaws, Mr. Ratliff
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`is not only arbitrary; it is divorced from any specific connection to the asserted technology—and
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`yet it increases his total damages calculation
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`Third, Mr. Ratliff applies a
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` “technical apportionment” factor untethered to any
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`evidence and which ignores numerous other significant technologies in the Accused Apps. Mr.
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`Ratliff bases his conclusory “technical apportionment” analysis solely on
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 7 of 21 PageID #: 14800
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`collectively ignore numerous significant technologies that contribute to the value of the Accused
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`Apps, thereby overstating the alleged importance of the patented features.
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`Mr. Ratliff applies his resulting royalty rate to Apple’s unit sales. As a consequence, Mr.
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`Ratliff’s analysis results in a damages figure that is: 35 to 3,736 times more than Apple has ever
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`paid for comparable technology (Ex. 3 [Meyer Rep.] ¶¶ 280-283);
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` As explained below, Mr. Ratliff’s opinions are
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`unreliable and unsupported.
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`Finally, Mr. Ratliff provides an opinion regarding the amount of damages calculated as a
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`percentage of Apple’s overall operating profits on the accused devices.
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`But the evidence does not support, and Mr. Ratliff does not suggest, that product profits are driven
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`by the accused features. Those opinions should therefore be excluded.
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`II.
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`ARGUMENT
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`An expert witness may provide opinion testimony only if “(a) the expert’s scientific,
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`technical, or other specialized knowledge will help the trier of fact to understand the evidence or
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`to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony
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`is the product of reliable principles and methods; and (d) the expert has reliably applied the
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`principles and methods to the facts of the case.” Fed. R. Evid. 702. Rule 702 requires a district
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`court to make a preliminary determination as to whether a particular expert’s proposed testimony
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`satisfies the rule’s requirements. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999);
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`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993).
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 8 of 21 PageID #: 14801
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`In patent cases, “[w]hen the accused technology does not make up the whole of the accused
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`product, apportionment is required.” Finjan, Inc. v. Blue Coat Sys., 879 F.3d 1299, 1309 (Fed.
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`Cir. 2018). “‘[T]he ultimate combination of royalty base and royalty rate must reflect the value
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`attributable to the infringing features of the product, and no more.’” Id. (quoting Ericsson, Inc. v.
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`D-Link Sys., Inc., 773 F.3d 1201, 1226 (Fed. Cir. 2014)). In other words, the “ultimate reasonable
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`royalty award must be based on the incremental value that the patented invention adds to the end
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`product.” Ericsson, 773 F.3d at 1226.
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`A. Mr. Ratliff’s “Technical Apportionment” Is Arbitrary And Unsupported.
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`Mr. Ratliff’s “technical apportionment” is impermissibly arbitrary because it is based
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`solely on
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`Ratliff did not conduct any survey, perform any market research, or interview any focus groups to
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`determine what features consumers value. His opinions fall short of Rule 702 for three reasons.
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`First, Mr. Ratliff’s
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` To reach his conclusion,
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 9 of 21 PageID #: 14802
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`A two-paragraph conclusory analysis from a damages expert relying only on conclusory
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`remarks by a technical expert (which, similarly, cites no evidence) cannot support a
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`to the allegedly patented features. Similar to this case, in ROY-G-BIV Corp. v.
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`ABB, Ltd., the court excluded a damages expert’s two-paragraph apportionment analysis “due to a
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`lack of sufficient analytic support” that “fail[ed] to show thorough analysis and merely state[d]
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`[the expert’s] conclusions.” No. 6:11-cv-622, 2014 WL 12465449, at *3 (E.D. Tex. Aug. 1, 2014)
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`(rejecting plaintiff’s damages expert’s opinion because it was based primarily on conversations
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`with inventors and plaintiff’s infringement expert). Mr. Ratliff and Mr. McAlexander provide no
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`objective evidence or substantial qualitative analysis to show
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` Id.; see also LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 67-69
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`(Fed. Cir. 2012) (discrediting apportionment that “appear[ed] to have been plucked out of thin air
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`based on vague qualitative notions of the relative importance of the [patented] technology.”).2
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`Indeed, Mr. Ratliff conceded that
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`Ratliff’s apportionment “estimate[]” is essentially a black box
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`2 Mr. Ratliff also states—in a single sentence—that the
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 10 of 21 PageID #: 14803
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`Second, accepting Mr. Ratliff’s and Mr. McAlexander’s opinions collectively leads to a
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`nonsensical result that reveals the arbitrariness of Mr. Ratliff’s
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`McAlexander concedes
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`As explained by Apple’s experts, Paul Meyer (damages) and Paul Clark (technical), the
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 11 of 21 PageID #: 14804
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`result.3
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` None of the evidence remotely supports that
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`Finally, AGIS’s apportionment analysis fails to account for all of the technical features of
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`the Accused Apps. In particular, AGIS’s experts did not consider
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` AGIS’s omissions alone are fatal to its
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`apportionment analysis because the evidence shows that
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`that
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` Indeed, AGIS’s founder and CEO, Malcolm Beyer, testified
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` And Apple’s witnesses specifically testified that
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`3 In contrast to AGIS’s experts, Apple’s expert Dr. Clark provided unrebutted analysis of each
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 12 of 21 PageID #: 14805
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`Furthermore, AGIS entirely ignores Apple’s own patented technology in the Accused
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`Apps.
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` Where a patent infringement defendant has patents
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`that cover its products, a patent holder’s damages expert must account for those patents. Exmark
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`Mfg. Co. v. Briggs & Stratton Power Prods. Grp., LLC, 879 F.3d 1332, 1350 (Fed. Cir. 2018)
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`(“We are skeptical that other patented components of the [accused product] bear no relation to the
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`overall value of the accused [products], which would influence the relative value of the patented
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`[feature] and thus the royalty rate. Even assuming, however, that they do not, the expert was
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`required to support her opinion to that effect with sound economic reasoning. Merely concluding
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`that other components do not affect the value of the accused [product] amounts to nothing more
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`than speculation.”). Thus, because Mr. Ratliff’s “technical apportionment” analysis is unsupported
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`and fundamentally unreliable, Mr. Ratliff’s damages opinion should be excluded in its entirety.
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`B. Mr. Ratliff’s “Market Price” Of A Hypothetical App Is Unreliable.
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`Mr. Ratliff’s hypothetical “market price” does not reliably estimate the value of the
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`Accused Apps. Apple provides the Accused Apps to consumers for free. Mr. Ratliff generates a
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`hypothetical “market price” for those free apps by choosing a non-free app with purportedly similar
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`features.
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`4 The iPad version costs $5.99.
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 13 of 21 PageID #: 14806
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` Mr. Ratliff’s
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`analysis and reasoning is flawed and unreliable for at least the following reasons.
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`1.
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`Mr. Ratliff Ignores The Fundamental Relationship Between Price
`And Demand.
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`Mr. Ratliff ignores the fundamental economic law that as the price of a product increases,
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`the demand for that product decreases. Mr. Ratliff assumes that the same number of users that use
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`the Accused Apps—which Apple provides for free—would
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`That makes no sense. If Apple charged a hypothetical market
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`price of $3 for the Accused Apps—instead of providing them for free—basic economics predict
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`that fewer users would buy or use the Accused Apps. If Apple charged a hypothetical market price
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`of $5 for the Accused Apps, even fewer users would buy or use the Accused Apps. And if Apple
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` Mr. Ratliff’s complete disregard for economic
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`5 Mr. Ratliff conceded during his deposition that
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 14 of 21 PageID #: 14807
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`law renders his damages model fundamentally flawed and unreliable.
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`2.
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`Mr. Ratliff’s Hypothetical “Market Price” Is Unsupported
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`Mr. Ratliff bases the market price of his hypothetical app
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`First, there is no evidence that the price of
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` Mr. Ratliff conceded
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`But Mr. Ratliff provided no
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`evidence that the Family Tracker app achieved anywhere near such distribution to make it a
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`reliable data point. And Mr. Ratliff was unable to identify any
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` While AGIS may argue that
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 15 of 21 PageID #: 14808
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`Second, Mr. Ratliff’s choice of
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` at best arbitrary and at worst purely litigation-driven. In particular, Mr. Ratliff
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`concedes that
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`Mr. Ratliff’s analysis is therefore unreliable. Mr. Ratliff cherry-picks the seldom-reviewed
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`market price
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`Third, even putting aside the impropriety of basing his entire damages analysis on a third-
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`party app
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 16 of 21 PageID #: 14809
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` But Mr. McAlexander concedes that
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` and that
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`Thus, because Mr. Ratliff’s basis for a hypothetical “market price” is based on insufficient
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`evidence and is fundamentally unreliable, Mr. Ratliff’s damages opinion should be excluded.
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 17 of 21 PageID #: 14810
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`C. Mr. Ratliff’s
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` Is Arbitrary And Unreliable.
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`Mr. Ratliff’s “usage apportionment” has two components:
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`First, Mr. Ratliff’s report does not explain the calculation of his
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`In particular, Mr. Ratliff’s analysis—
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`10 As Apple will demonstrate at trial, Mr. Ratliff’s 37.3% apportionment is similarly based on
`unsupported logical leaps and assumptions that render it impermissibly flawed.
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 18 of 21 PageID #: 14811
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`more than such rank speculation.
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`Second, Mr. Ratliff arbitrarily selects an average
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`Ratliff attributes the entire purported
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` Patent damages requires
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` Yet Mr.
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`renders Mr. Ratliff’s analysis unreliable. Indeed, studies show that over seven times as many users
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`use their insurance to replace a broken phone than users who use their insurance to replace a lost
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`or stolen phone.
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`should be excluded.
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` Accordingly, Mr. Ratliff’s arbitrary
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`D.
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`The Entire Market Value Rule Does Not Permit Calculation Of Damages As
`A Percentage Of Profits.
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`Damages can be presented as a percentage of revenues or profits of an entire product only
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`“[i]f it can be shown that the patented feature drives the demand for an entire multi-component
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`product. . . .” LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 67 (Fed. Cir. 2012).
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`14
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 19 of 21 PageID #: 14812
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`¶¶ 288-290. As AGIS concedes, there is no evidence that shows that the allegedly patented
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`features drive demand for the accused Apple devices.
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`Yet Mr. Ratliff nevertheless improperly provides an opinion comparing his damages
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`amount to Apple’s overall operating profits for the accused devices and “ecosystem.”
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` Mr. Ratliff’s opinions related to the total profits associated with
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`the accused Apple devices or “ecosystem” should be excluded as an improper invocation of the
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`entire market value rule. LaserDynamics, 694 F.3d at 68.11
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`III. CONCLUSION
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`For the foregoing reasons, Apple respectfully requests that this Court exclude Mr. Ratliff’s
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`opinions regarding “technical apportionment” (Ex. 1 [Ratliff Rep.] ¶¶ 108-109), the hypothetical
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`“market price” of the Accused Apps (id. ¶¶ 67-72), the
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` purportedly
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`attributable to the Accused Apps (id. ¶¶ 93-94), and the improper invocation of the Entire Market
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`Value Rule (id. ¶¶ 125, 146; Exs. 12 and 13 [Workpaper 12, 19]). Exclusion of either Mr. Ratliff’s
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`hypothetical “market price” analysis—which forms the basis for Mr. Ratliff’s damages
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`calculation—or Mr. Ratliff’s “technical apportionment”—renders Mr. Ratliff’s entire damages
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`calculation fundamentally flawed. His damages opinion should therefore be excluded in its
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`entirety.
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`11 Mr. Ratliff also relies on incomplete information regarding third-party licenses
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` Those opinions should similarly be excluded because
`Mr. Ratliff relies on them to suggest a royalty rate as a percentage of overall profit.
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 20 of 21 PageID #: 14813
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`Dated: December 14, 2018
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`By: Respectfully submitted:
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`/s/ Melissa R. Smith
`Melissa Richards Smith
`State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Ave.
`Marshall, TX 75670
`Tel: (903) 934-8450
`Fax: (903) 934-9257
`melissa@gillamsmithlaw.com
`
`John M. Desmarais
`Paul A. Bondor
`Michael P. Stadnick
`Ameet A. Modi
`Cosmin Maier
`Kerri-Ann Limbeek
`Brian Matty
`Tom BenGera
`Kathryn Bi
`Francesco Silletta
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
`Email: jdesmarais@desmaraisllp.com
`Email: pbondor@desmaraisllp.com
`Email: mstadnick@desmaraisllp.com
`Email: amodi@desmaraisllp.com
`Email: cmaier@desmaraisllp.com
`Email: klimbeek@desmaraisllp.com
`Email: bmatty@desmaraisllp.com
`Email: tbengera@desmaraisllp.com
`Email: kbi@desmaraisllp.com
`Email: fsilletta@desmaraisllp.com
`
`ATTORNEYS FOR DEFENDANT
`APPLE INC.
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`16
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`Case 2:17-cv-00513-JRG Document 242 Filed 12/18/18 Page 21 of 21 PageID #: 14814
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). Plaintiff’s counsel of record were served with a true and
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`correct copy of the foregoing document by electronic mail on December 14, 2018.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`CERTIFICATE OF CONFERENCE
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`I hereby certify that counsel for Apple conferred with counsel for AGIS regarding the
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`foregoing motion. Counsel for AGIS indicated that they are opposed to the relief sought in this
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`motion.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`17
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