Case 2:18-cv-00508-JRG Document 112 Filed 04/28/20 Page 1 of 21 PageID #: 5295
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`UNILOC 2017 LLC,
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`Plaintiffs,
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`v.
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`SAMSUNG ELECTRONICS AMERICA, INC.
`and SAMSUNG ELECTRONICS CO. LTD.
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`Defendants.
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`Civil Action No. 2:18-cv-508-JRG-RSP
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`SAMSUNG’S DAUBERT MOTION TO EXCLUDE
`CERTAIN OPINIONS AND TESTIMONY OF UNILOC’S DAMAGES EXPERT
`WALTER BRATIC
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`I.
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`II.
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
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`FACTUAL BACKGROUND ............................................................................................. 1
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`A.
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`B.
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`Uniloc Contends That Samsung Sold Mobile Devices With Lock Screens That
`Infringe The ’654 Patent, But Lock Screens Were Already Known In The Art. ... 1
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`Although Mr. Bratic Could Not Say What Incremental Benefit Was Conferred By
`The ’654 Patent, He Claims Damages of
`Through Q2 2020. ........... 3
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`C.
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`Mr. Bratic Ignores A Mountain Of Real-World Evidence. .................................... 4
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`III.
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`ARGUMENT ...................................................................................................................... 5
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`A.
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`Mr. Bratic And Dr. Easttom Fail To Reliably Apportion Damages To Account For
`Only The Value Attributable To The ’654 Patent. ................................................. 6
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`1.
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`2.
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`Dr. Easttom’s Chart Is Pulled From Thin Air. ............................................ 7
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`Mr. Bratic And Dr. Easttom Do Not Isolate And Separate The Value Of
`The Allegedly Infringing Features From The Value Of The Non-
`Infringing Features And Components. ........................................................ 8
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`B.
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`Mr. Bratic’s Use Of Samsung Surveys Is Arbitrary And Unreliable. .................. 10
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`1.
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`2.
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`3.
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`Mr. Bratic Assumes, With No Basis, That The Samsung Survey He Relies
`On Implicates The ’654 Patent. ................................................................ 10
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`Mr. Bratic Improperly Equates The Percentage Of Responses To A
`Product Positioning Survey With The Percentage Of Revenue................ 11
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`Mr. Bratic Cherry Picks One Samsung Survey. ....................................... 12
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`C.
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` For
`Mr. Bratic Improperly Relies On An
`His 50/50 Economic Benefit Split. ....................................................................... 13
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`D.
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`Mr. Bratic Relies On Other Non-Comparable Agreements .................................. 14
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`Case 2:18-cv-00508-JRG Document 112 Filed 04/28/20 Page 3 of 21 PageID #: 5297
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`BMC Software, Inc. v. ServiceNow, Inc.,
`2016 WL 379620 (E.D. Tex. Feb. 1, 2016) ...............................................................................9
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`Daubert v. Merrell Dow Pharm., Inc.,
`509 U.S. 579 (1993) .........................................................................................................5, 7, 10
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`E.E.O.C. v. Freeman,
`778 F.3d 463 (4th Cir. 2015) ...................................................................................................12
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`Ericsson, Inc. v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014)..................................................................................................6
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`Gen. Elec. Co. v. Joiner,
`522 U.S. 136 (1997) ...................................................................................................................7
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`Intelligent Verification Sys., LLC. v. Microsoft Corp.,
`2015 WL 1518099 (E.D. Va. Mar. 31, 2015) ..........................................................................10
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`Konrick v. Exxon Mobil Corp.,
`2016 WL 439361 (E.D. La. Feb. 4, 2016) ...............................................................................12
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`Micro Chem., Inc. v. Lextron, Inc.,
`317 F.3d 1387 (Fed. Cir. 2003)..................................................................................................5
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`Paz v. Brush Engineered Materials, Inc.,
`555 F.3d 383 (5th Cir. 2009) .....................................................................................................7
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`Rembrandt Soc. Media, LP v. Facebook, Inc.,
`22 F. Supp. 3d 585 (E.D. Va. 2013) ........................................................................................11
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`ResQNet.com, Inc. v. Lansa, Inc.,
`594 F.3d 860 (Fed. Cir. 2010)....................................................................................................6
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`Uniloc USA, Inc. v. Samsung Elecs. Am., Inc.,
`2019 WL 2267212 (E.D. Tex. April 17, 2019) ....................................................................6, 10
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`I.
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`INTRODUCTION
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`The opinions of Uniloc 2017 LLC’s (“Uniloc”) damages expert, Walter Bratic, should be
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`excluded because they are perfunctory, unreliable and biased. First, Mr. Bratic violated the golden
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`rule of patent damages – apportionment – by failing to identify and separate the value of the
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`allegedly infringing features of Samsung’s accused products from the other features and
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`components that Uniloc’s own technical expert, Dr. Chuck Easttom,
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` In fact, Mr. Bratic did no apportionment at all, relying instead on Dr. Easttom’s
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`“Apportionment Factor,” which Dr. Easttom pulled from thin air without any supporting analysis,
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`research, testing, data, or peer-reviewed publications. Second, Mr. Bratic cherry-picked one
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`Samsung survey, ignored at least 18 others, and employed no discernible methodology in selecting
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`and using survey data. Third, he
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`relates to the technology of the ’654 patent. Fourth, Mr. Bratic improperly equated the percentage
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`of consumer responses in the survey to the percentage of a feature’s contribution to Samsung’s
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`overall profits for the accused products. He did no analysis to justify this one-to-one correlation
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`for a single accused product, much less all 100+ accused products sold since 2012. Fifth, Mr.
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`Bratic improperly relied on an inadmissible,
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` to support his claim that, in a hypothetical negotiation, Samsung would have
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`agreed to equally split the benefits from the licensed patent. Sixth, he improperly relies on
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`admittedly non-comparable license agreements so he and Uniloc could prejudice the jury with high
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`dollar figures. His damages opinions are beyond flawed and should be excluded.
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`II.
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`FACTUAL BACKGROUND
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`A.
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`Uniloc Contends That Samsung Sold Mobile Devices With Lock Screens That
`Infringe The ’654 Patent, But Lock Screens Were Already Known In The Art.
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`According to U.S. Patent No. 6,836,654 (the “’654 patent”), preventing unauthorized usage
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`of a mobile phone between the time the phone is lost and the time the owner blocks the phone via
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`the network was an “object of the invention.” (Ex. 1, ’654 patent at 1:40-41.)1 The ’654 patent
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`purports to achieve this object of preventing unauthorized usage as follows: First, “a device [i.e.,
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`a phone] in accordance with the invention (1) verifies a user identification module [e.g., a SIM
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`card] mounted inside the mobile radiotelephony device is linked to the mobile radiotelephony
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`device,” much like the prior art. (Id. at 1:39-43.) Then, the device “(2) detects a period of inactivity
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`of the mobile radiotelephony device during a normal operation of the mobile radiotelephony
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`device, wherein the normal operation includes a processing of all outgoing calls, and (3) prevents
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`the normal operation of the mobile radiotelephony device in response to the verification of the user
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`identification module and in response to the detection of the period of inactivity of the mobile
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`radiotelephony device.” (Id. at 1:43-51.) Once normal operation is prevented, a “deblocking code”
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`must “be supplied to return to the normal operation mode.” (Id. at 2:11-12.)
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`Uniloc’s technical expert, Dr. Easttom, admitted that
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` (Ex. 3, Easttom Dep. at 9:1-9, 10:23-12:13.) Mr. Bratic did not discuss any of these
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`points with Dr. Easttom and did not know the incremental benefit provided by the ’654 patent:
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`1 All exhibits are attached to the Declaration of Valerie Ho.
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`Case 2:18-cv-00508-JRG Document 112 Filed 04/28/20 Page 6 of 21 PageID #: 5300
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`(Ex. 4, Bratic Dep. at 64:6-81:2.)
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`B.
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`Although Mr. Bratic Could Not Say What Incremental Benefit Was Conferred By
`The ’654 Patent, He Claims Damages of
` Through Q2 2020.
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`Uniloc served Mr. Bratic’s damages report on February 18, 2020. (Ex. 2, Bratic Rpt.). Mr.
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`Bratic initially opined that a reasonable royalty on the accused Samsung mobile devices would be
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`a running royalty of
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` per unit, which when applied to a royalty base of approximately
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` units of devices sold (based on actual and forecasted sales), results in approximately
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` in damages through Q2 2020. (Ex. 2, Bratic Rpt. at Ex. 6.) Mr. Bratic constructed a
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`supposed hypothetical negotiation – a construct that is useful when there is no real-world evidence
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`– based on the following methodology: He began with the average sales price of
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`accused product. He multiplied the average sales price by Samsung Electronics America, Inc.’s
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`(“SEA”) average gross (not net) profit margin for the accused products to arrive at a gross profit
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`number of
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` He then used one Samsung survey – while excluding at least 18 other equally,
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`if not more, applicable surveys – to conclude that
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`of the gross profits, or
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`, is “[a]ttributable
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`to [d]evice [s]ecurity.” He then relied exclusively on Dr. Easttom’s opaque “Apportionment
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`Factor” of 50% to conclude that 50% of the “device security” on the accused products is
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`attributable to the ’654 patent, i.e.,
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`. He concluded that Samsung and IPG Electronics 503
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`Ltd. (“IPG”), the hypothetical licensor in this case, would have agreed to split that “[e]conomic
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`[v]alue” 50/50, at a per unit royalty rate of
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`. (Ex. 2, Bratic Rpt. at Ex. 6.1.)
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`On March 24, 2020, the Court granted Uniloc’s motion to compel the production of
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`Samsung Electronics Co. Ltd.’s (“SEC”) cost of goods sold (“COGS”) for the accused products.
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`(Dkt. 94.) On April 8, 2020, after receiving SEC’s COGS, Mr. Bratic served a supplemental report.
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`(Ex. 6, Bratic Supp. Rpt.) Mr. Bratic updated Samsung’s profit margin from
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`only subtracting COGS from revenues and disregarding SEA’s and SEC’s operating expenses. (Id.
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`at Supp. Ex. 6.1; Ex. 4, Bratic Dep. at 93:15-22, 98:17-99:21, 107:15-108:14, 113:6-114:22; Ex.
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`7, Vigil Supp. Rpt. at ¶¶ 14-18.) Mr. Bratic arrived at an increased per unit royalty of
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`. Even
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`though Mr. Bratic had no idea what incremental benefit the patent conferred, he opined that
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`damages should be
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` through Q2 2020. (Ex. 6, Supp. Bratic Rpt. at Supp. Ex. 6.)
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`C.
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`Mr. Bratic Ignores A Mountain Of Real-World Evidence.
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`The ’654 patent issued on December 28, 2004 and was assigned to Koninklijke Philips
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`Electronics N.V. (“Philips”). In June 2008, Philips sold the ’654 patent,
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`to IPG for
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` (Ex. 5, Vigil Rpt., ¶ 22.) Pendragon Wireless LLC (“Pendragon”), a
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`subsidiary of Pendrell Technologies LLC (“Pendrell”), then purchased the ’654 patent,
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` in March 2012. (Id.) In November 2017, Uniloc
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`Luxembourg S.A. purchased the ’654 patent,
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`Pendrell, for
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`portfolio
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` (Id.) In March 2018, Uniloc purchased Uniloc Luxembourg’s entire patent
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` (Id.) Mr. Bratic
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`claimed that none of these real-world purchase agreements involving the ‘654 patent was relevant
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`for purposes of determining the value of the patent. (Ex. 2, Bratic Rpt. at ¶¶ 52-108.)
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`On May 28, 2011,
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` (Ex. 8 & 9.) On January 26, 2014,
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`claimed that
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` (Ex. 11.) Mr. Bratic
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` (Ex. 2, Bratic Rpt. at ¶¶ 52-108; Ex. 4, Bratic Dep. at 185:9-186:17, 188:10-191:14, 208:5-
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`209:8, 211:23-216:10.)
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`III. ARGUMENT
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`An expert witness may provide opinion testimony if “(a) the expert’s scientific, technical,
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`or other specialized knowledge will help the trier of fact to understand the evidence or to determine
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`a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product
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`of reliable principles and methods; and (d) the expert has reliably applied the principles and
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`methods to the facts of the case.” Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509
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`U.S. 579, 592-93 (1993). The district court has a “gatekeeper” role under Rule 702 to ensure that
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`opinion testimony does not reach the jury when it “is irrelevant or does not result from the
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`application of reliable methodologies or theories to the facts of the case.” Micro Chem., Inc. v.
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`Lextron, Inc., 317 F.3d 1387, 1391 (Fed. Cir. 2003).
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`A. Mr. Bratic And Dr. Easttom Fail To Reliably Apportion Damages To Account For
`Only The Value Attributable To The ’654 Patent.
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`“[T]he trial court must carefully tie proof of damages to the claimed invention's footprint
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`in the market place.” ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 869 (Fed. Cir. 2010).
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`“[W]here multi-component products are involved, the governing rule is that the ultimate
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`combination of royalty base and royalty rate must reflect the value attributable to the infringing
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`features of the product, and no more.” Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1226
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`(Fed. Cir. 2014). “That rule provides the basis for ‘an important evidentiary principle’ that requires
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`expert testimony to apportion for the value added by a patent.” Uniloc USA, Inc. v. Samsung Elecs.
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`Am., Inc., 2019 WL 2267212, *14 (E.D. Tex. April 17, 2019) (Gilstrap, J.).
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`Here, Mr. Bratic
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`the ’654 patent. (Ex. 4, Bratic Dep. at 64:6-79:18.) He relies exclusively on the following chart
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`from Dr. Easttom for his 50% “Apportionment Factor.” (Id. at 41:12-42:1; Ex. 12, Easttom Rpt.
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`at ¶ 361; Ex. 2, Bratic Rpt. at ¶ 153.)
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`Dep. at 156:25-159:11
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`1.
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`Dr. Easttom’s Chart Is Pulled From Thin Air.
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`“Nothing in either Daubert or the Federal Rules of Evidence requires a district court to
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`admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Gen.
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`Elec. Co. v. Joiner, 522 U.S. 136, 137 (1997). Dr. Easttom’s chart is not supported by any research,
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`analysis, testing or peer-reviewed publication. (Ex. 12, Easttom Rpt. at ¶ 361.) The sole basis for
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`the percentages in the chart is his
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`Easttom Dep. at 311:15-313:2, 324:9-326:12.) Dr. Easttom claimed
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` (Id. at 326:13-24.) This is
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`precisely the type of fake expert opinion that courts regularly exclude. See Paz v. Brush Engineered
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`Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009) (“Where an expert’s opinion is based on
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`insufficient information, the analysis is unreliable.”); Hathaway v. Bazany, 507 F.3d 312, 318 (5th
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`Cir. 2007) (“[T]he existence of sufficient facts and a reliable methodology is in all instances
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`mandatory. Without more than credentials and a subjective opinion, an expert's testimony that ‘it
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`is so’ is not admissible.”); Blue Spike v. Huawei Techs., 2016 WL 9286102, at *4 (E.D. Tex. Oct.
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`14, 2016) (expert “does not offer any ‘credible economic analysis’ to support his conclusion,
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`making the 10% factor seemingly ‘plucked out of thin air . . . .’”); Stragent, LLC v. Intel Corp.,
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`2014 WL 1389304, at *4 (E.D. Tex. March 6, 2014) (excluding expert opinion “not based on any
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`theory that meets the Daubert criteria of verifiability, peer review or publication, an acceptable
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`error rate, or general acceptance in the scientific community.”).
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`In fact, Mr. Bratic’s blind reliance on the perfunctory “apportionment” opinion of a
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`technical expert was already soundly rejected in Netfuel, Inc. v. Cisco Sys. Inc., 2020 WL 1274985,
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`at *6-8 (N.D. Cal. March 17, 2020). Like Dr. Easttom, the technical expert in that case had pulled
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`so-called “apportionment” figures from thin air and claimed that the numbers were based on his
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`knowledge and experience. Id. Mr. Bratic performed no apportionment of his own and had simply
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`relied on the technical expert’s made-up numbers to arrive at a royalty. Id. The court ruled:
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`[A]n expert witness must follow some discernable methodology, and may not be a
`“a black box into which data is fed at one end and from which an answer emerges
`at the other.” [Citation omitted.] In order for this Court to determine whether Dr.
`Rubin’s conclusions are “reliable” and based on “sufficient facts or data,” the Court
`must be able to follow his methodology. See Fed. R. Evid. 702. . . .
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`After reviewing Dr. Rubin’s reports, the Court agrees with Defendant—Dr. Rubin’s
`conclusion that “security, reliability, and availability” represented 33% of the value
`of the Accused Operating Systems is an impermissible black box without “sound
`economic and factual predicates.” [Citation omitted.]
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`Id. (citing Riles v. Shell Expl. & Prod. Co., 298 F.3d 1302, 1311 (Fed. Cir. 2002) and GPNE Corp.
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`v. Apple, Inc., 2014 WL 1494247, at *4-5 (N.D. Cal. Apr. 16, 2014) (noting that “experience” does
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`not constitute “sufficient facts or data” or “reliable principles and methods”)). As in Netfuel, Dr.
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`Easttom’s chart, Mr. Bratic’s reliance on the chart, and the so-called “Apportionment Factor” used
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`by Mr. Bratic should all be excluded.
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`2.
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`Mr. Bratic And Dr. Easttom Do Not Isolate And Separate The Value Of The
`Allegedly Infringing Features From The Value Of The Non-Infringing
`Features And Components.
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`Mr. Bratic concedes, as he must, that the accused Samsung products are multi-component
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`devices that contain components and features that are not taught by the ’654 patent. (Ex. 4, Bratic
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`Dep. at 87:14-25.)2 He understood Dr. Easttom’s chart to indicate that the teachings of the ’654
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`patent contribute to
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`(Ex. 4,
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`Bratic Dep. 88:1-6.) Thus, he should be precluded from testifying about total revenues or profits.
`Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1320 (Fed. Cir. 2011); BMC Software, Inc.
`v. ServiceNow, Inc., 2016 WL 379620, at *3 (E.D. Tex. Feb. 1, 2016) (Gilstrap, J.).
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`(Ex. 4, Bratic Dep. at
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`153:12-155:6.) Even though Dr. Easttom’s chart attributed
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`to the teachings of the ’654 patent,
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` (Ex. 3, Easttom Dep. at 317: 5-16.) He further admitted that the ’654
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`patent
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` (Id. at 43:8-21.) Neither Dr. Easttom nor Mr. Bratic performed any analysis to
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`(Ex. 4, Bratic Dep. 159:14-160:2.) Similarly, even though Dr. Easttom attributed
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` to the teachings of the ’654 patent, Mr. Bratic
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`understood that the technology to make emergency calls existed and was legally required before
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`the invention of the ‘654 patent. However, he performed
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` (Id. at 82:1-4, 160:11-162:3.) Mr. Bratic’s
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`damages opinions should be excluded because he did not separate the value of the allegedly
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`infringing features from the value of the non-infringing features and components. See BMC
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`Software, 2016 WL 379620, at *3 (finding that expert “has failed to specify, distinguish, and then
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`separate the value of BMC’s patented features from the unpatented features of ServiceNow’s
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`products.”); Uniloc USA, 2019 WL 2267212, at *14 (Gilstrap, J.) (granting Daubert motion
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`because expert failed to apportion the “value specifically added by the [asserted] patent” when
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`accused smartwatches were a “multi-component product”); Intelligent Verification Sys., LLC. v.
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`Microsoft Corp., 2015 WL 1518099, *7 (E.D. Va. Mar. 31, 2015) (Mr. Bratic “did not properly
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`apportion any value to the necessary hardware components” when such components have “‘several
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`non-infringing features with no relation to the patented feature,’ and yet Mr. Bratic attributed 100%
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`of the [feature] to the apportioned royalty base”).
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`B. Mr. Bratic’s Use Of Samsung Surveys Is Arbitrary And Unreliable.
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`1.
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`Mr. Bratic Assumes, With No Basis, That The Samsung Survey He Relies On
`Implicates The ’654 Patent.
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`In the one survey used by Mr. Bratic,
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` of respondents said they wanted a phone that
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` (Ex. 2, Bratic Rpt. at ¶ 149; Ex. 13; Ex. 4,
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`Bratic Dep. at 115:20-117:6.) Mr. Bratic
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`there is no evidence that this survey’s reference to
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`even implicates the technology of the ’654 patent (as opposed to, e.g.,
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`“apportion” the value of the patent for any product, much less all 100+ accused products. See Blue
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`Spike, 2016 WL 9286102, at *4 (excluding damages expert’s testimony in part because the surveys
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`he relied on “report that consumers value ‘data security,’ for instance, but this broad term
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`undoubtedly incorporates consumers’ value for other non-patented security features on a
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`smartphone, such as fingerprint sensors and mobile authentication.”).
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`2.
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`Mr. Bratic Improperly Equates The Percentage Of Responses To A Product
`Positioning Survey With The Percentage Of Revenue.
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`Mr. Bratic assumed, but performed zero analysis to show, that survey responses about how
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`general product positioning statements, i.e., information protection, “resonated” with survey
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`participants equate to any contribution to Samsung’s gross profits for the accused mobile devices.
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`The Samsung survey used by Mr. Bratic merely studied product positioning statements – for
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`does not support the analytical leap from the percentage of consumer responses about a concept
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`Rembrandt Soc. Media, LP v. Facebook, Inc., 22 F. Supp. 3d 585, 596 (E.D. Va. 2013), is directly
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`on point. There, the damages expert, like Mr. Bratic, simply “assume[d] – without explanation –
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`that the weighted importance of any given feature is exactly equal to that same percentage of
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`[Facebook’s] advertising revenue.” Id. Notably, here, the survey used by Mr. Bratic
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` The survey expert in Rembrandt “admitted that his survey
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`was just meant to determine the features that most drive Facebook’s usage, and that ‘the link
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`between this [usage] data and the revenue question has to be the subject of a separate analysis.’”
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`Id. The damages expert in Rembrandt, like Mr. Bratic, “did not perform that analysis, and did not
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`explain why weighted importance of some feature to a user directly correlates to a certain
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`percentage of Facebook’s advertising revenue.” Id. Accordingly, the court found the damages
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`expert’s methodology to be “suspect and unreliable” and excluded it. Id. Mr. Bratic’s opinions
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`should be excluded for the same reason because he performed no analysis whatsoever to support
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`equating the
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`of Samsung’s gross profits. Moreover, even if this
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`correlation were permissible, there is no basis to apply the
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`survey to gross profits for more than 100 accused products sold over an eight-year period.
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`3.
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`Mr. Bratic Cherry Picks One Samsung Survey.
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`“[C]ourts have consistently excluded expert testimony that ‘cherry-picks’ relevant data.”
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`E.E.O.C. v. Freeman, 778 F.3d 463, 469 (4th Cir. 2015) (collecting cases); Konrick v. Exxon Mobil
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`Corp., 2016 WL 439361, at *13 (E.D. La. Feb. 4, 2016), aff’d, 670 Fed. App’x 222 (5th Cir. 2016).
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`Here, Mr. Bratic used one Samsung survey regarding
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`disregarding at least 18 other surveys,
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` while
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`selected one Samsung survey because it
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` (Exs. 14-31.) He claimed that he
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` But he
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`Exs. 28 & 29.) He admitted that in another case between Uniloc and Samsung (No. 2:18-cv-506),
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`he had
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`134:13.) He also excluded surveys that studied
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`(Id. at 144:7-148:3.) Instead of attributing
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`thereby skewing the percentage attributable to “device security” much higher. In short, Mr. Bratic
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`employed no discernible, consistent, non-biased methodology in selecting the Samsung marketing
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` he disregarded those surveys,
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`surveys used. Depending on which surveys he selected, the percentage attributable to “device
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`security” can change from
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` thereby reducing the damages under his model by
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`C. Mr. Bratic Improperly Relies On An
`50/50 Economic Benefit Split.
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`Mr. Bratic relies on a
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` For His
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`for his proposed
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`of the economic benefits from the ’654 patent between Samsung and IPG.
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`3 Mr. Bratic opined that all of the other
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`Second,
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`Whitserve, LLC v. Computer Packages, Inc., 694 F.3d 10, 29-30 (Fed. Cir. 2012) (“We
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`acknowledge that proposed licenses may have some value for determining a reasonable royalty in
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`certain situations. Their evidentiary value is limited, however, by inter alia, the fact that patentees
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`could artificially inflate the royalty rate by making outrageous offers.”); Wi-Lan Inc. v. LG Elecs.,
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`Inc., 2019 U.S. Dist. LEXIS 191152, at *19-21 (S.D. Cal. Nov. 1, 2019) (excluding proposals to
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`license under Rule 403 where no one agreed to the proposals).
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`Third, the circumstances of
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` are different from the hypothetical negotiation.
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` the hypothetical negotiation would have involved a non-exclusive license to only the
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`’654 patent,
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` (Ex. 4, Bratic Dep. at 164:13-165:4, 165:25-166:4, 167:16-
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`168:2, 169:10-170:23.) Ziilabs Inc., Ltd. v. Samsung Elecs. Co. Ltd., 2015 WL 11110651, at *4
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`(E.D. Tex. Dec. 4, 2015) (excluding unconsummated non-analogous agreements).
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`D. Mr. Bratic Relies On Other Non-Comparable Agreements
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`Uniloc had moved to compel the production of certain Samsung license agreements it
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`learned about from internet searches. (Dkt. 68.) Samsung opposed the motion because those
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`agreements involved non-comparable technology and Uniloc obviously was fishing for high
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`dollar value licenses. (Dkt. 72.) Before the hearing, Samsung produced the requested
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` agreements with the pricing terms redacted and asked Uniloc to
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`explain why the patents at issue were relevant. (Ex. 34.) Uniloc could not and agreed not to move
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`for unredacted copies of the agreements. (Ho Decl. at ¶ 36; Dkt. 78.) Mr. Bratic
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`comparable to the ’654 patent.5 (Ex. 6,
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`Bratic Supp. Rpt. at ¶¶ 35-36; Ex. 4, Bratic Dep. at 21:21-24.) He nevertheless cites public
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`sources to highlight the agreements’ high dollar figures. (Ex. 6, Bratic Supp. Rpt. at ¶¶ 16, 18,
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`23, 28.) He also contends that
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`. (Id. at ¶ 38.) This backdoor
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`attempt to introduce non-comparable agreements has been squarely rejected by this Court.
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`Realtime Data LLC v. EchoStar Corp., 2018 WL 6266300, at *4 (E.D. Tex. Nov. 15, 2018)
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`(excluding damages expert’s reliance on non-comparable licenses to show structure of the
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`royalty rate); LaserDynamics, Inc. v. Quanta Comput., Inc., 694 F.3d 51, 79 (Fed. Cir. 2012)
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`(when relying on past licenses, an expert must demonstrate more than a “loose or vague
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`comparability between different technologies or licenses.”); Open Text S.A. v. Box, Inc., 2015
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`WL 349197, at *5 (N.D. Cal. Jan. 23, 2015) (excluding testimony regarding non-comparable
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`licenses, including for “background evidence”).6
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`6 Mr. Bratic also should be precluded from testifying that
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`evidence to support this statement and a vague claim about “mobile device technology” is not
`admissible. (Ex. 2, Bratic Rpt. at ¶ 160.) Laser Dynamics, 694 F.3d at 79.
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`Respectfully submitted,
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`By: /s/ Valerie W. Ho
`Valerie W. Ho
`GREENBERG TRAURIG, LLP
`1840 Century Park East
`Los Angeles, CA 90067
`Telephone: (310) 586-7700
`Facsimile: (310) 586-7800
`Email: hov@gtlaw.com
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`Richard A. Edlin
`Allan A. Kassenoff
`Justin A. MacLean
`GREENBERG TRAURIG, LLP
`MetLife Building, 200 Park Avenue
`New York, NY 10002
`Telephone: (212) 801-9200
`Facsimile: (212) 801-6400
`Email: edlinr@gtlaw.com
`Email: kassenoffa@gtlaw.com
`Email: macleanj@gtlaw.com
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`Melissa R. Smith
`Bar No. 24001351
`GILLAM & SMITH LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`Email: melissa@gillamsmithlaw.com
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`Attorneys for Defendants Samsung
`Electronics America, Inc. and
`Samsung Electronics Co., Ltd.
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`Dated: April 24, 2020
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`CERTIFICATE OF CONFERENCE
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`On April 24, 2020, Allan Kassenoff, Valerie Ho, and Melissa Smith, counsel for Samsung,
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`conferred with Aaron Jacobs, Brian Tollefson, and Kevin Gannon, counsel for Uniloc, as required
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`by Local Rule 7(h). Counsel for Uniloc confirmed that Uniloc opposes this motion. Discussions
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`conclusively ended at an impasse, leaving an open issue for the Court to resolve.
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on this 24th day of April 2020, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document by
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`electronic mail under Local Rule CV-5(d).
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`Pursuant to Local Rule 5(a)(7)(A), the undersigned hereby certifies that the corresponding
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`documents were filed under seal pursuant to the Court’s Protective Order (Dkt. 23).
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