Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 1 of 10 PageID #: 18684
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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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`LG ELECTRONICS INC.,
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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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`Case No. 2:17-CV-0515-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S REPLY TO
`DAUBERT MOTION TO EXCLUDE THE OPINIONS OF
`W. CHRISTOPHER BAKEWELL RELATING TO DAMAGES (DKT. 127)
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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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`
`HTC CORPORATION,
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`
`Defendant.
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`LG ELECTRONICS INC.,
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`
`Defendant.
`
`
`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`
`Case No. 2:17-CV-0515-JRG
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S REPLY TO
`DAUBERT MOTION TO EXCLUDE THE OPINIONS OF
`W. CHRISTOPHER BAKEWELL RELATING TO DAMAGES (DKT. 127)
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 2 of 10 PageID #: 18685
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`I.
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`INTRODUCTION
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`AGIS’s motion to exclude the opinions of LG’s damages expert W. Christopher
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`Bakewell is not “a disagreement over how a piece of evidence in this case should be weighed,”
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`nor is it “picking at the edges” of Mr. Bakewell’s discussion of an agreement that serves as a
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`mere “data point” in his damages analysis, as LG would have this Court believe. (Dkt. 127 at 1,
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`2). Despite the 130 page bulk of Mr. Bakewell’s Rebuttal Report,1
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` Mr. Bakewell
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`did not rely on any other agreement to establish a concrete reference point for the outcome of the
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`hypothetical negotiation between AGIS and LG.2
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`LG’s opposition devotes much of its attention to whether a settlement agreement can be
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`relied upon as a comparable license for the reasonable royalty analysis. Dkt. 127 at 1-4. AGIS
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`already acknowledged in its opening brief that a settlement agreement may be relied upon as a
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`comparable license, but only where the expert “account[s] for the ‘technological and economic
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`differences’” Dkt. 127 at 4; see Wordtech Sys. v. Integrated Networks Sol’ns, Inc., 609 F.3d
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`1308 (Fed. Cir. 2010); see also Res-Q-Net.com, Inc. v. Lansa, Inc. 594 F.3d 860, 872 (Fed. Cir.
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`2010).
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`1 Mr. Bakewell’s Rebuttal Report in this matter is 137 pages long, not including another 49 pages of exhibits and
`attachments.
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`2
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 3 of 10 PageID #: 18686
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`II.
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`ARGUMENT
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`A.
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`LG Has Failed to Show That
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`AGIS’s motion focused on specific ways Mr. Bakewell failed to establish that
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`LG ducks the issue regarding the lack of evidence linking
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`3 When asked at his deposition about whether the
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`2
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 4 of 10 PageID #: 18687
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`this explanation, nor Mr. Bakewell’s report, shed any light on how this translates into the
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` LG tries to
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`distinguish Realtime Data v. Echostar Corp., No. 6:17-CV-00084-JDL, 2018 WL 1959319
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`(E.D. Tex.), cited by AGIS, by arguing that the lump sum settlement license in that case was
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`excluded due to a lack of technical comparability. Dkt. 127 at 10. While lack of technical
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`comparability was indeed the second factor noted in the Court’s decision, the first factor
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`expressly addressed by the Court in granting the motion to exclude the agreement in question
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`was that, “the final agreement reached lacks any reference to the court’s prior order or the
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`royalty base (if any at all) used to arrive at the lump-sum payment.” Id. at 8.4 The same result
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`should be obtained here.
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`4 As LG correctly notes, AGIS’s motion inadvertently reversed its citations to Dkts. 271 and 272 in the Realtime
`Data case.
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`3
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 5 of 10 PageID #: 18688
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`Mr. Bakewell’s report acknowledges that the context of the negotiations of the
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`comparable license is relevant (Dkt. 127-2 at ¶ 158), yet he only mentioned in a footnote
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` LG now dismisses this, arguing only that AGIS cites to
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`no authority that this is relevant to
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`With respect to AGIS’s point that Mr. Bakewell failed to account for the changing value
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`of the licensed technology over time,
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 6 of 10 PageID #: 18689
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` This does not mean that the
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`technology disclosed by the AGIS patents is not novel or would quickly become obsolete.
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`LG also attempts to distinguish Flexuspine, Inc. v. Globus Med. Inc., 6:15-cv-201-JRG-
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`KNM, 2016 WL 9276023 (E.D. Tex. July 6, 2016) which AGIS cited for the proposition that
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`royalty figures that fail to account for such differences are unreliable. Dkt. 127 at 6. Again, LG
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`relies on Mr. Bakewell’s conclusory statements that
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` the expert’s statements in Flexuspine that, “all intervertebral implant technology which
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`is comparable to the intervertebral implant technology that is the subject of the patents-in-suit.”
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`Id. at *5.
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`5
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 7 of 10 PageID #: 18690
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`III. CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court grant AGIS’s
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`Daubert motion to exclude the damages opinions of W. Christopher Bakewell, but at minimum,
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`to exclude Mr. Bakewell’s opinions as to the
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`Dated: February 19, 2019
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`BROWN RUDNICK LLP
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` /s/ Alfred R. Fabricant
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`
`
`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
`Timothy J. Rousseau
`NY Bar No. 4698742
`Email: trousseau@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
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`6
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 8 of 10 PageID #: 18691
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`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`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
`Telephone: 903-923-9000
`Facsimile: 903-923-9099
`
`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 9 of 10 PageID #: 18692
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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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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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`Case 2:17-cv-00514-JRG Document 215 Filed 02/21/19 Page 10 of 10 PageID #: 18693
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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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` Alfred R. Fabricant
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