Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 1 of 10 PageID #: 19050
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:17-CV-0514-JRG
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`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`v.
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`HTC CORPORATION,
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`Defendant.
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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. 128)
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
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`§
`Case No. 2:17-CV-0514-JRG
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`(LEAD CASE)
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`§
`JURY TRIAL DEMANDED
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`v.
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`HTC CORPORATION,
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`Defendant.
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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. 128)
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 2 of 10 PageID #: 19051
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`AGIS’s motion to exclude the opinions of HTC’s damages expert W. Christopher
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`Bakewell is not a matter of AGIS disputing “the facts and some of the data points” relied on by
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`Mr. Bakewell, nor does AGIS’s motion go to the weight rather than the admissibility of
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`Mr. Bakewell’s opinions. Dkt. 128 at 1.
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` HTC’s
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`opposition to this motion cites to no authority whatsoever to show that such clear language,
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`evidencing the intent of the parties, can be summarily disregarded, let alone by an expert for one
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`of the very parties to that agreement. Dkt. 128 at 5. For this reason alone,
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`and Mr. Bakewell’s opinions based on it should be excluded from the case.
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`Instead of focusing on this, HTC devotes much of its attention to arguing a point not in
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`dispute, i.e. that a settlement agreement can be relied upon as a comparable license for the
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 3 of 10 PageID #: 19052
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`reasonable royalty analysis. Dkt. 128 at 1-4. AGIS already acknowledged in its opening brief
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`that a settlement agreement may be relied upon as a comparable license, but only where the
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`expert “account[s] for the ‘technological and economic differences’” Dkt. 128 at 4; see Wordtech
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`Sys. v. Integrated Networks Sol’ns, Inc., 609 F.3d 1308 (Fed. Cir. 2010); see also Res-Q-
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`Net.com, Inc. v. Lansa, Inc. 594 F.3d 860, 872 (Fed. Cir. 2010).
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` his expert opinions based on them are unreliable
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`and should be excluded.
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`I.
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`HTC 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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`HTC responds to AGIS’s argument that Mr. Bakewell has
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` Yet nowhere in
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 4 of 10 PageID #: 19053
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`Mr. Bakewell’s report does he appear to have considered
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`accepting as true HTC’s position that the accused products in those cases were virtually the same
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`products accused by AGIS,
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` As to this
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`point, HTC also tries to distinguish Realtime Data v. Echostar Corp., No. 6:17-CV-00084-JDL,
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`2 Exhibits A-D refer to Exhibits to the Declaration of Alfred Fabricant.
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 5 of 10 PageID #: 19054
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`2018 WL 1959319 (E.D. Tex. Apr. 5, 2018) (E.D. Tex.) cited by AGIS, arguing that the lump-
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`sum settlement license in that case was excluded due to a lack of technical comparability. Dkt.
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`128 at 9. While lack of technical comparability was indeed the second factor noted in the
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`Court’s decision, the first factor expressly addressed by the Court in granting the motion to
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`exclude the agreement in question was that, “the final agreement reached lacks any reference to
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`the court’s prior order or the royalty base (if any at all) used to arrive at the lump-sum payment.”
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`Id. at 8. The same result should be obtained here.
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`With respect to the litigation context in which each of the agreements was negotiated,
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 6 of 10 PageID #: 19055
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`Bakewell
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` In light of this, HTC cannot credibly take the position that Mr.
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`AGIS’s motion also challenges Mr. Bakewell’s methodology in that he performed only
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` AGIS’s technical expert never suggested that the technology disclosed by the AGIS
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`patents is not novel or would quickly become obsolete;
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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,
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 7 of 10 PageID #: 19056
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`Dated: February 20, 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
`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
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 8 of 10 PageID #: 19057
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`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
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`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 9 of 10 PageID #: 19058
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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
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` Alfred R. Fabricant
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`Case 2:17-cv-00514-JRG Document 218 Filed 02/21/19 Page 10 of 10 PageID #: 19059
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 20, 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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