Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 1 of 19 PageID #: 18236
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`HTC CORPORATION,
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`Defendant.
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`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`§
`§
`§
`§
`§
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSITION
`TO DEFENDANT HTC CORPORATION’S MOTIONS IN LIMINE NOS. 1-12
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`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”) hereby submits its
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`opposition to Defendant HTC Corporation’s (“HTC” or “Defendant”) Motions in Limine (Dkt.
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`151).
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`I.
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`MIL No. 1 To Exclude Any Non-Factual or Potentially Prejudicial Commentary
`Regarding HTC’s Nationality
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`Agreed.
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`II. MIL No. 2 To Exclude Any Argument or Testimony Concerning HTC Corp.’s Size,
`Wealth, Total Net Worth, Total Profits, and/or Ability to Pay Damages
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`HTC’s motion should be denied because it is overly broad and would result in undue
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`prejudice to AGIS. AGIS must reference HTC’s financial information related to the accused
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`products for at least the purpose of proving damages. Indeed, several courts have held that
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`financial data, including total revenues from accused products, is relevant and admissible in
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`patent infringement actions. See, e.g., Finjan, Inc. v. Blue Coat Sys., Inc., No. 13-CV-03999-
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`BLF, 2015 WL 4129193, at *4 (N. D. Cal. July 8, 2015) (citing Apple, Inc. v. Samsung Elecs.
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`Co., No. 11–CV–01846–LHK, 2014 WL 549324, at *7 (N.D. Cal. Feb. 7, 2014)) (“As to
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 2 of 19 PageID #: 18237
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`acquisition costs for technology containing the accused features and total revenues for the
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`accused products, however, that information is relevant and probative if properly apportioned.”);
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`See id. (“Although it does not appear that Plaintiff’s expert . . . actually relies on accused
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`product revenues for any part of her analysis, the Court will permit Plaintiff to use such revenues
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`and acquisition valuations as a starting point for a properly apportioned royalty base.”).
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`Moreover, HTC’s overall size, wealth, profits, and ability to pay damages are all relevant
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`to its bargaining power, and should therefore be considered as part of factor 15 under Georgia-
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`Pacific Corp. v. U.S. Plywood Corporation. See 318 F. Supp. 1116, 1140 (S.D.N.Y. 1970),
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`modified sub nom. Georgia-Pac. Corp. v. U.S. Plywood-Champion Papers, Inc., 446 F.2d 295
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`(2d Cir. 1971) (criticizing plaintiff’s royalty rate evidence where “[t]here is an absence of
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`meaningful evidence about such obviously pertinent factors as the relative economic positions of
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`the licensor and licensee at the time the particular royalty was negotiated, in terms of their
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`respective bargaining strength and their competitive status inter se . . . .”) (emphasis added); see
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`also id. at 1122 (“the Court must take into account the realities of the bargaining table”).
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`HTC has not identified any prejudice that requires exclusion of opinions set forth in Mr.
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`McAlexander’s report. HTC has provided a rebuttal expert report and will have an opportunity
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`to depose Mr. McAlexander about his opinions. Mr. McAlexander will be so limited in his
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`testimony. There is no prejudice to HTC that necessitates exclusion at this stage.
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`Accordingly, HTC’s MIL No. 1 should be denied.
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`III. MIL No. 3 To Exclude Any Argument or Testimony Regarding Google’s
`Confidential Source Code That Was Not Included in AGIS’s Infringement
`Contentions
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`HTC’s motion should be denied because it would result in undue prejudice to AGIS,
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`while HTC has not been prejudiced at all.
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 3 of 19 PageID #: 18238
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`HTC cannot argue that it was left to guess what would be accused until it received
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`AGIS’s expert report; AGIS’s infringement theories were disclosed completely in its
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`contentions. See, e.g., Exhibit A1 at 7, 9, 11-15, 17-19. While the theories are required to be
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`disclosed in the contentions, each and every piece of evidence that might ultimately support that
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`theory is not. Infringement contentions “are not intended to require a party to set forth a prima
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`facie case of infringement and evidence in support thereof.” Realtime Data, LLC v. Packeteer,
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`Inc., No. 6:08-CV-144, 2009 WL 2590101, at *5 (E.D. Tex. 2009) (“[I]nfringement contentions
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`are intended to frame the scope of the case in order to provide for ‘full, timely discovery and [to]
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`provide parties with adequate notice and information with which to litigate their case.’”) (citing
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`Nike, Inc. v. Adidas Am. Inc., 479 F. Supp. 2d 664, 667 (E.D. Tex. 2007)). Here, HTC does not
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`complain that AGIS failed to identify Android Device Manager and Google Maps in its
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`infringement contentions, because it cannot. AGIS identified both of those features in its
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`infringement contentions as early as January 19, 2018. AGIS specifically identified the portions
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`of software responsible for performing each claimed step. See, e.g., Exhibit A at 12-14. HTC
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`argues simply that AGIS did not identify every piece of evidence on which its expert would
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`ultimately rely in its contentions. There is no such requirement.
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`HTC’s reliance on the Discovery Order is misplaced. The Discovery Order permits a
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`plaintiff to defer its P.R. 3-1 disclosures until 30 days after source code is produced in the event
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`that the claim element is a software element. Here, AGIS did not defer its infringement
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`contentions pursuant to this provision of the discovery order; it disclosed its theories without
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`reliance on this provision. Instead, AGIS identified the specific elements of software that meet
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`each claim limitation.
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`1 Excerpts from AGIS’s Disclosure of Asserted Claims and Infringement Contentions, served
`on January 19, 2018, are attached hereto as Exhibit A.
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` Notably,
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`HTC did not move to strike Mr. McAlexander’s expert report or to argue that Mr. McAlexander
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`had exceeded the scope of AGIS’s contentions, because he did not. HTC should not be
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`permitted to eliminate large swaths of Mr. McAlexander’s report in limine.
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`HTC cannot preclude AGIS’s expert from identifying additional evidence in support of
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`previously-disclosed infringement theories. Indeed, “[t]he Patent Rules intend to strike a balance
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`of providing fair notice to defendants without requiring unrealistic, overly factual contentions
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`from plaintiffs, but the burden of notice the Patent Rules place on plaintiffs is intended to be a
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`shield for defendants, not a sword.” Id. at 818 (emphasis added). HTC cannot use them as a
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`sword here where it has clearly not been prejudiced.
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`Accordingly, HTC’s MIL No. 3 should be denied.
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 5 of 19 PageID #: 18240
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`IV. MIL No. 4 To Exclude AGIS’s Argument or Testimony Regarding Google Source
`Code That Was Produced After HTC Corp.’s Expert Served His Rebuttal Report
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`HTC’s motion should be denied for the reasons discussed in AGIS’s opposition to HTC’s
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`MIL No. 3.
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` To the extent HTC was
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`prejudiced by these late productions by its co-defendants, AGIS was as well.
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`V. MIL No. 5 To Exclude AGIS Argument or Testimony About Joint Infringement
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`HTC’s motion should be denied. The proper place for HTC to raise this argument would
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`have been in a Daubert motion or a motion to strike regarding AGIS’s expert Joseph
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`McAlexander’s testimony, which HTC has not filed. Mr. McAlexander’s testimony at trial will
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`be limited to the topics in his expert report. HTC may cross-examine him at trial, but further
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`limitation is unwarranted and improper.
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`In any event, HTC was clearly on notice of AGIS’s intention to argue joint infringement.
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`First, HTC acknowledges that AGIS’s preliminary infringement contentions include “jointly-
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 6 of 19 PageID #: 18241
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`and-directly infringing.” HTC’s Mots. in Limine Nos. 1-12 at 7 n.5.
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` Moreover, HTC’s motion is overly broad in seeking to exclude any such
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`argument or testimony about joint infringement, and doing so at this stage would unduly
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`prejudice AGIS.
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`Accordingly, HTC’s MIL No. 5 should be denied.
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`VI. MIL No. 6 To Exclude AGIS’s Expert’s Testimony About Nondisclosed Doctrine of
`Equivalents Theories
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`HTC’s motion is baseless. First, AGIS’s infringement contentions put HTC on notice of
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`AGIS’s doctrine of equivalents theories. See, e.g., HTC Exhibit 7 at 1, 16, 17-18. Mr.
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`McAlexander’s expert report did as well, which HTC’s citation clearly demonstrates. See HTC’s
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`Mots. in Limine Nos. 1-12 at 8.
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`compliance with Rule 26(a)(2) of the Federal Rules of Civil Procedure, Mr. McAlexander has his
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`opinions and the basis and reasons for them. On the other hand, in support of its argument for
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`2 Excerpts of the Expert Report of Joseph C. McAlexander III Regarding Infringement of U.S.
`Patent Numbers: 8,213,970; 9,408,055; 9,445,251; and 9,467,838 (“McAlexander Report”)
`are attached hereto as Exhibit B.
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 7 of 19 PageID #: 18242
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`exclusion, HTC merely quotes an inapplicable case that granted summary judgment and
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`determined that the doctrine of equivalents did not overcome the decision of non-infringement.
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`See Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1112-13 (Fed. Cir. 2000).
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`Moreover, to the extent HTC takes issue with the merits of any of AGIS’s infringement
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`theories, HTC can address them at trial. ROY-G-BIV Corp. v. ABB, Ltd., 63 F. Supp. 3d 690, 700
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`(E.D. Tex. 2014) (“Most of [defendant’s] arguments appear to implicate the merits of
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`[plaintiff’s] infringement theories rather than the scope or [plaintiff’s] infringement contentions,
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`and are therefore better handled at trial than through a motion to strike.”); see also Moore U.S.A.,
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`at 1105 (“While claim construction is a question of law, infringement, whether literal or under
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`the doctrine of equivalents, is a question of fact.”) (emphasis added) (citations omitted).
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`Indeed, this Court has ordered that “[t]he parties shall limit their motions in limine to issues that
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`if improperly introduced at trial would be so prejudicial that the Court could not alleviate the
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`prejudice by giving appropriate instructions to the jury.” Docket Control Order, Dkt. No. 85 at
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`2.
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` Accordingly, HTC’s MIL No. 6 should be denied.
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`VII. MIL No. 7 To Exclude AGIS’s Experts or AGIS From Referring to Component
`Supplier or Carrier Contracts
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`HTC’s motion should be denied because it is overly broad and would result in undue
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`prejudice to AGIS. This overbroad attempt to exclude evidence regarding HTC’s business is
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`premature. HTC does not deny that such evidence is relevant; it only argues that AGIS has not
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`sought or obtained discovery on any contracts between HTC and its component suppliers or
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`carriers, and that AGIS’s experts have not opined on such relationships. “Evidence should not
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`be excluded in limine unless it is clearly inadmissible on all potential grounds.” Orchestrate HR,
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`Inc. v. Trombetta, No. 3:13-CV-2110-KS, 2017 WL 273669, at *1 (N.D. Tex. Jan. 20, 2017).
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 8 of 19 PageID #: 18243
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`Moreover, as discussed above, this Court has ordered the parties to “limit their motions in limine
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`to issues that if improperly introduced at trial would be so prejudicial that the Court could not
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`alleviate the prejudice by giving appropriate instructions to the jury.” Docket Control Order,
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`Dkt. No. 85 at 2. HTC has failed to explain how it would be prejudiced by such testimony and
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`certainly has not shown that any alleged prejudice here could not be alleviated with an
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`appropriate instruction at trial. Further, to exclude this evidence at this stage would unduly
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`prejudice AGIS as it attempts to set forth its case.
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` Accordingly, HTC’s MIL No. 7 should be denied.
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`VIII. MIL No. 8 To Exclude AGIS’s Reliance
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`HTC’s motion should be denied because it is based on flatly inaccurate statements.
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`Moreover, the documents HTC seeks to exclude are relevant and to exclude them would
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`prejudice AGIS.
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`HTC did not require AGIS to produce them in order to form or analyze any potential defenses.
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`does not preclude their admission at trial. See, e.g., C.R. Bard, Inc. v. M3 Sys., Inc., No. 93 C
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`4788, 1994 WL 270252, at *4 (N.D. Ill. June 16, 1994) (“Despite M3 System’s untimely
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`production of damages documents, the evidence is not excluded.”).
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`3 Excerpts of the Rebuttal Expert Report Regarding Damages of W. Christopher Bakewell,
`dated January 11, 2019 (“Bakewell Rebuttal Report”) are attached hereto as Exhibit C.
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 9 of 19 PageID #: 18244
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`Additionally, despite HTC’s assertions, the third-party licenses are relevant. Even if, as
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`HTC suggests, the licenses are not comparable, they may still be relevant. See, e.g., PalTalk
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`Holdings, Inc. v. Microsoft Corp., No. 2:06-CV-367 (DF), 2009 WL 10677719, at *2 (E.D. Tex.
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`Mar. 8, 2009) (“Microsoft has also asked this Court, in a motion in limine, to exclude any
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`argument or evidence related to non-comparable license agreements. As stated above non-
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`comparable agreements may be relevant to a reasonable royalty assessment under Georgia–
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`Pacific; specifically, such agreement may be relevant under Geogia–Pacific Factor 3. As a
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`result, Microsoft’s motion in limine . . . is denied.”).
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`IX. MIL No. 9 To Exclude Inventor’s Testimony on Issues He Refused to Testify on
`During His Corporate Deposition
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`HTC’s motion should be denied because it is overly broad and would result in undue
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`prejudice to AGIS. HTC accuses AGIS and Mr. Beyer of “gamesmanship,” however, HTC
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`ignores the reality of Mr. Beyer’s testimony in view of the Defendants’ malformed questions.
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`Mr. Beyer, a nearly 80-year-old witness, sat for two full days of deposition on numerous
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`deposition topics. Mr. Beyer is the named inventor on nearly twenty patents and hundreds of
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`claims, most of which are not asserted in this case.
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`Moreover, a witness’s inability to answer questions at a 30(b)(6) deposition does not
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`automatically preclude testimony at trial. Musket Corp. v. Suncor Energy (U.S.A.) Mktg., Inc.,
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`No. CV H-15-100, 2016 WL 6956773, at *4 (S.D. Tex. Nov. 29, 2016) (“Irsik also did not know
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`during his Rule 30(b)(6) deposition how many barrels the Windsor Terminal could take per day
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`ratably. The court, however, finds that the fact that he could not provide these details during the
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`deposition does not make his expansion on the concepts after reviewing documents for his
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`declaration a sham. There is no conflict.”); Cont’l Cas. Co. v. First Fin. Employee Leasing, Inc.,
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`716 F. Supp. 2d 1176, 1190–91 (M.D. Fla. 2010) (“Although preclusion may be imposed as a
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`sanction, it does not follow automatically from the nature of Rule 30(b)(6) testimony.”).
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 12 of 19 PageID #: 18247
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`The prejudice that would result if Mr. Beyer were precluded from testifying is clear.
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`“Patents are written not for laymen, but for and by persons experienced in the field of the
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`invention. An inventor is a competent witness to explain the invention and what was intended to
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`be conveyed by the specification and covered by the claims. The testimony of the inventor may
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`also provide background information, including explanation of the problems that existed at the
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`time the invention was made and the inventor’s solution to these problems.” Voice Techs. Grp.,
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`Inc. v. VMC Sys., Inc., 164 F.3d 605, 615 (Fed. Cir. 1999). Mr. Beyer’s testimony is necessary
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`for AGIS to present its case in chief at trial and exclusion of his testimony would be extremely
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`detrimental and unfairly prejudicial to AGIS. In comparison, HTC will not be prejudiced
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`because it will be able to cross-examine Mr. Beyer on any topic on which he testifies.
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`Accordingly, Mr. Beyer should be permitted to testify at trial and HTC’s MIL No. 9
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`should be denied.
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`X. MIL No. 10 To Exclude Any Reference To Any Expert’s Prior Work With HTC’s
`Lawyers Or Retention By Perkins Coie LLP
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`HTC’s motion should be denied because it is overly broad and would result in undue
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`prejudice to AGIS. HTC argues that such evidence is both irrelevant and, even if relevant,
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`unfairly prejudicial to HTC. However, the evidence is clearly relevant to the credibility of an
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`expert. An expert’s prior expert testimony is a topic of inquiry in nearly any litigation, including
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`patent litigation. Moreover, there is no risk of prejudice to HTC from this evidence. As one
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`court indicated, “[t]he fact that Storace [(the expert)] was hired by Club Car in a past case does
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`not mean his testimony on behalf of KF in the present case is unfairly prejudicial to Club Car.
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`Club Car may make clear through cross-examination that it does not endorse Storace’s testimony
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 13 of 19 PageID #: 18248
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`in the present case and that Storace did not receive any detailed information regarding the Club
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`Car’s braking system through his past employment. Club Car may also clarify that Storace has
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`never been used by Club Car as an expert of Club Car’s braking system.” Perez-Garcia v.
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`Puerto Rico Ports Auth., No. 08-1448 (GAG), 2012 WL 12552257, at *2 (D.P.R. July 5, 2012)
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`(denying same motion in limine).
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`The cases relied on by HTC in support of this motion are inapposite. Neither involved a
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`motion in limine prior to trial. See United States v. Pipkins, 528 F.2d 559 (5th Cir. 1976)
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`(holding that attorney-client privilege did not attach to testimony of handwriting expert
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`previously employed by defense counsel); Peterson v. Willie, 81 F.3d 1033 (11th Cir. 1996)
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`(affirming judgment in favor of defendants on appeal). Moreover, in Peterson, the court
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`acknowledged that “there may be situations where this fact [that the expert has been previously
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`retained by the opposing party or its counsel] should be disclosed to a jury.” 81 F.3d at 1038.
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`Accordingly, a blanket preclusion of this evidence would be inappropriate and MIL No. 10
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`should be denied.
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`XI. MIL No. 11 To Exclude Any Reference To An Earlier Priority Date Based On
`Alleged Conception And/Or Reduction To Practice
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`HTC’s motion should be denied because it is overly broad and would result in undue
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`prejudice to AGIS. However, even if Apple did prevail on this issue at summary judgment,5
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`evidence of events that occurred prior to that date would still be admissible at trial. Such
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`evidence would be relevant to the history and story of the patents. The probative value of this
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`invention story evidence would be high, while there would be no risk of unfair prejudice or
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 14 of 19 PageID #: 18249
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`confusion because the issue of the correct priority date would no longer be an issue for the jury
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`to decide. Accordingly, HTC’s MIL No. 11 should be denied.
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`XII. MIL No. 12 To Exclude Any Argument or Testimony Concerning
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`HTC’s motion should be denied because it is premature and would result in undue
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`prejudice to AGIS. This attempt to exclude evidence regarding HTC’s business is premature.
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`Moreover, HTC’s unsupported statement that such evidence is “irrelevant” does not make it so.
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`See HTC’s Mots. in Limine Nos. 1-12 at 15. “Evidence should not be excluded in limine unless
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`it is clearly inadmissible on all potential grounds.” Orchestrate HR, Inc. v. Trombetta, No. 3:13-
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`CV-2110-KS, 2017 WL 273669, at *1 (N.D. Tex. Jan. 20, 2017). “Because the relevance of
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`evidence often depends on what happens at trial, that standard is particularly difficult to meet
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`when asserting a relevance objection.” Sec. & Exch. Comm’n v. Ferrone, 163 F. Supp. 3d 549,
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`563 (N.D. Ill. 2016).
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` See, e.g., id. (“[E]videntiary rulings related to
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`relevance are best deferred until trial so that they can be resolved in the proper context.”).
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`Indeed, as discussed above, the parties must “limit their motions in limine to issues that if
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`improperly introduced at trial would be so prejudicial that the Court could not alleviate the
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`prejudice by giving appropriate instructions to the jury.” Docket Control Order, Dkt. No. 85 at
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`2. Lastly, to exclude this evidence at this stage would unduly prejudice AGIS as it attempts to
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`set forth its case.
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`Accordingly, HTC’s MIL No. 12 should be denied.
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`Dated: February 19, 2019
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`BROWN RUDNICK LLP
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 15 of 19 PageID #: 18250
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`/s/Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Lawrence C. Drucker
`NY Bar No. 2303089
`Email: ldrucker@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`Shahar Harel
`NY Bar No. 4573192
`Email: sharel@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`Daniel J. Shea, Jr.
`NY Bar No. 5430558
`Email: dshea@brownrudnick.com
`Justine Minseon Park
`NY Bar No. 5604483
`Email: apark@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
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`Samuel F. Baxter
`Texas State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`McKOOL SMITH, P.C.
`104 East Houston Street, Suite 300
`Marshall, Texas 75670
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 16 of 19 PageID #: 18251
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`Telephone: 903-923-9000
`Facsimile: 903-923-9099
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`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 17 of 19 PageID #: 18252
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`CERTIFICATE OF CONFERENCE
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`This is to certify that counsel for Plaintiff AGIS Software Development LLC met and
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`conferred with counsel for Defendant HTC Corporation in compliance with LR CV-7(h) in
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`regards to its Motions in Limine. While the parties have reached an impasse, they have agreed to
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`meet and confer again so as to try to continue to narrow the issues in dispute.
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`/s/Alfred R. Fabricant
`Alfred R. Fabricant
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 18 of 19 PageID #: 18253
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`The undersigned certifies that the foregoing document is authorized to be filed under seal
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`pursuant to the Protective Order entered in this case.
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`Alfred R. Fabricant
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`Case 2:17-cv-00514-JRG Document 211 Filed 02/21/19 Page 19 of 19 PageID #: 18254
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 19, 2019, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/Alfred R. Fabricant
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