Case 2:17-cv-00514-JRG Document 256 Filed 03/04/19 Page 1 of 8 PageID #: 21037
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`HTC CORPORATION,
`
`Defendant.
`
`
`
`CIVIL ACTION NO. 2:17-cv-514-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`DEFENDANT’S SUR-REPLY TO PLAINTIFF AGIS SOFTWARE DEVELOPMENT
`LLC’S DAUBERT MOTION TO EXCLUDE OPINIONS OF W. CHRISTOPHER
`BAKEWELL RELATING TO DAMAGES
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`HTC CORPORATION,
`
`Defendant.
`
`
`
`CIVIL ACTION NO. 2:17-cv-514-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`DEFENDANT’S SUR-REPLY TO PLAINTIFF AGIS SOFTWARE DEVELOPMENT
`LLC’S DAUBERT MOTION TO EXCLUDE OPINIONS OF W. CHRISTOPHER
`BAKEWELL RELATING TO DAMAGES
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 2:17-cv-00514-JRG Document 256 Filed 03/04/19 Page 2 of 8 PageID #: 21038
`
`Plaintiff AGIS Software Development LLC’s (“AGIS”) Reply to Daubert Motion to
`
`Exclude Opinions of W. Christopher Bakewell Relating to Damages (Dkt. No. 128) (Dkt. No. 202)
`
`(“Reply”) re-hashes factual disputes complained of in its Motion and re-asserts its “not enough
`
`support” theme regarding certain opinions of Mr. Bakewell. Ultimately, HTC, and respectfully
`
`the Court, are left to address factual disputes and wrestle with weighing evidence, not arguing or
`
`deciding upon
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`And again, AGIS delves into weighing evidence, using terms of degree regarding its own
`
`opinions and criticisms, and in requesting that the Court to do the same,
`
`:
`
`
`
`●
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`e
`
`
`
`
`
`
`
`
`
`2 Pursuant to this Court’s typical instructions, credibility of testimony is for the jury to decide.
`1
`
`
`
`
`
`
`
`Case 2:17-cv-00514-JRG Document 256 Filed 03/04/19 Page 3 of 8 PageID #: 21039
`
` ●
`
`
`
`
`
`
`
`
`These challenges go to the weight of Mr. Bakewell’s testimony, not its admissibility, and are
`
`
`
`insufficient grounds to exclude either part of, or all of his opinions under Daubert4 and Fed. R.
`
`Evid. 702. Therefore, Plaintiff’s Motion should be denied.
`
`I.
`
`
`
`that,
`
`HTC HAS SHOWN THAT THE LEVINE AND MOSAID AGREEMENTS ARE
`ECONOMICALLY COMPARABLE.
`
`Plaintiff AGIS expends much of its efforts in its Reply attempting to buttress its assertion
`
` Not true.
`
`
`
`
`
`f
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
`5 Amended Complaint filed October 28, 2010, Alfred B. Levine v. Samsung Telecomm. America, et al., Case No.
`2:09-cv-00372, pp. 7, 9.
`6 Amended Scheduling Order and Discovery Order, March 19, 2012, Alfred B. Levine v. Samsung Telecomm. America,
`et al., Case No. 2:09-cv-00372.
`
`
`
`2
`
`
`
`
`
`
`
`Case 2:17-cv-00514-JRG Document 256 Filed 03/04/19 Page 4 of 8 PageID #: 21040
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`7 Amended Complaint filed July 27, 2011, MOSAID Technologies, Inc. v. Sony Ericsson Mobile Comm. (USA), Inc.
`et al., Case No. 1:11-cv-00598, pp. 3-4.
`
`
`
`
`
`3
`
`
`
`Case 2:17-cv-00514-JRG Document 256 Filed 03/04/19 Page 5 of 8 PageID #: 21041
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`9 Claim Construction Hearing and Motion Hearing filed January 25, 2012, Alfred B. Levine v. Samsung Telecomm.
`America, et al., Case No. 2:09-cv-00372.
`10 Claim Construction Order filed February 3, 2012, Alfred B. Levine v. Samsung Telecomm. America, et al., Case No.
`2:09-cv-00372.
`
`
`
`
`
`
`
`
`4
`
`
`
`Case 2:17-cv-00514-JRG Document 256 Filed 03/04/19 Page 6 of 8 PageID #: 21042
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`At face value, Plaintiff’s Reply actually argues that Mr. Bakewell does not account enough
`
`for13 the alleged
`
`
`
`Thus AGIS’ Reply, like its Motion, is a veiled attempt to usurp the role of the jury as fact finder.
`
`In light of the above reasons, HTC respectfully requests that the Court wholly deny AGIS’ Motion.
`
`
`
`
`13 See ActiveVideo Network, Inc. v. Verizon Commc’ns, Inc., et al., 694 F.3d 1312, 1333 (Fed. Circ. 2012) (“The
`degree of comparability of the Gemstar and Grande license agreements as well as any failure on the part of
`ActiveVideo’s expert to control for certain variables are factual issues best addressed by cross examination and not
`by exclusion.”)
`
`
`
`5
`
`
`
`Case 2:17-cv-00514-JRG Document 256 Filed 03/04/19 Page 7 of 8 PageID #: 21043
`
`Dated: February 28, 2019
`
`
`Respectfully submitted by,
`
`
`
`
`
` /s/ Eric H. Findlay
`
`
`Eric H. Findlay (Texas Bar No. 00789886)
`Brian Craft (Texas Bar No. 04972020)
`FINDLAY CRAFT, P.C.
`102 N. College Ave., Ste. 900
`Tyler, TX 75702
`Email: efindlay@findlaycraft.com
`Email: bcraft@findlaycraft.com
`Tel: (903) 534-1100
`Fax: (903) 534-1137
`
`Matthew C. Bernstein (Lead Attorney)
`CA State Bar No. 199240
`mbernstein@perkinscoie.com
`Miguel J. Bombach
`CA State Bar No. 274287
`mbombach@perkinscoie.com
`Kyle R. Canavera
`CA State Bar No. 314664
`kcanavera@perkinscoie.com
`PERKINS COIE LLP
`11452 El Camino Real, Suite 300
`San Diego, CA 92130-2080
`Tel: (858) 720-5700
`Fax: (858) 720-5799
`
`Attorneys for Defendant
`HTC CORPORATION
`
`
`
`6
`
`
`
`Case 2:17-cv-00514-JRG Document 256 Filed 03/04/19 Page 8 of 8 PageID #: 21044
`
`
`
`I hereby certify that all counsel of record who have consented to electronic service are
`
`CERTIFICATE OF SERVICE
`
`being served with a copy of this document via the Court’s CM/ECF system per Local Rule CV-
`
`5(a)(3) on this 28th day of February, 2019.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Eric H. Findlay
`Eric H. Findlay
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`7
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
