Case 2:19-cv-00310-JRG-RSP Document 179 Filed 01/23/21 Page 1 of 5 PageID #: 7008
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`MEMORANDUM ORDER
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`GREE, INC.,
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` Plaintiff,
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`v.
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`SUPERCELL OY,
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` Defendant.
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`Case No. 2:19-cv-00310-JRG-RSP
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`Before the Court is Defendant Supercell Oy’s Motion to Strike Plaintiff GREE, Inc.’s
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`Technical Expert, Dr. Robert Akl, for Improper Claim Construction. Dkt. No. 115. Supercell’s
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`Motion seeks to strike opinions of Dr. Akl that allegedly rely upon an improper claim construction
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`of “character.”
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`I.
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`BACKGROUND
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`On October 13, 2020, the Court issued a Claim Construction Order construing disputed
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`claim terms of U.S. Patent No. 10,076,708 (the “’708 patent”) and No. 10,413,832 (the “’832
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`patent”). Dkt. No. 84. At issue in the present motion is the Court’s construction of “character” as
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`meaning “symbol.” See Id. at 19. The Court noted in the Claim Construction Order that “the patents
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`provide ‘character’ as an alternative to ‘patterns’ and ‘colors’ to denote the rarity of an item.” Id.
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`at 18. The Court also pointed to the ’708 Patent’s specification at col.9 ll.16–67 and the ’708
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`Patent’s File Wrapper April 26, 2018 Amendment to discuss the distinction between “pattern” and
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`“character.” Id. The ‘’708 Patent specification provides:
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`FIG. 7(a) illustrates an example of acquirable item information
`presented by the information presentation unit 12 in Embodiment 2.
`… Items are associated with the boxes 201 to 219 so that the
`respective counts of necessary acquisition attempts are 1 to 19. Each
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`box is displayed with a pattern that differs in accordance with the
`item type of the corresponding item.
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`As illustrated in the example in FIG. 7(a), when the numerical value
`of the item type is at least a predetermined value, the pattern shown
`in box 204 and the like is displayed. …
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`The patterns for displaying the boxes 201 to 219 are not limited to
`these examples. The boxes 201 to 219 may be painted a
`predetermined color in accordance with the item type, or a
`predetermined icon, character, or the like may be displayed in the
`boxes 201 to 219.
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`’708 Patent col. 9 ll.16–67. The ’708 Patent File Wrapper provides:
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`The claims are further amended to recite the feature of “at least one
`of the cells including a character which indicates a rarity value of an
`item associated with the at least one of the cells.” This feature may
`be understood with reference to the publication of this application,
`with paragraph [0089] disclosing that each cell may have a
`“character” in lieu of the “pattern” in accordance with the “item
`type” as in paragraph [0087], and paragraph [0040] describing the
`“item type” as representing the rarity value.”
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`Dkt. No. 65-3 at 5. The Court found that “[o]n balance, the term ‘symbol’ adequately captures the
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`distinction between ‘character’ and the other forms described in the patent for denoting the rarity
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`attribute of an item.”
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`II.
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`LEGAL STANDARDS
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`Federal Rule of Evidence 702 permits expert witness testimony if:
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`“(a) the expert’s scientific, technical, or other specialized knowledge
`will help the trier of fact to understand the evidence or to determine
`a fact in issue; (b) the testimony is based on sufficient facts or data;
`(c) the testimony is the product of reliable principles and methods;
`and (d) the expert has reliably applied the principles and methods to
`the facts of the case.”
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`Fed. R. Evid. 702. The district court “ensur[es] that an expert’s testimony both rests on a reliable
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`foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579,
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`579-80 (1993). Relevance is a low bar. Evidence is relevant if: (a) it has any tendency to make a
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`fact more or less probable than it would be without the evidence; and (b) the fact is of consequence
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`in determining the action. Fed. R. Evid. 401.
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`Regarding reliability, part of that inquiry is whether the data utilized in the methodology is
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`sufficiently tied to the facts of the case. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150
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`(1999). The burden is on the party offering the expert testimony to establish admissibility by a
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`preponderance of the evidence. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998)
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`(en banc).
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`However, “the question of whether the expert is credible or the opinion is correct is
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`generally a question for the fact finder, not the court.” Summit 6, LLC v. Samsung Elecs. Co., 802
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`F.3d 1283, 1296 (Fed. Cir. 2015), citing Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1314 (Fed.
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`Cir. 2014), overruled on other grounds by Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed.
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`Cir. 2015) (en banc). “Vigorous cross-examination, presentation of contrary evidence, and careful
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`instruction on the burden of proof are the traditional and appropriate means of attacking shaky but
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`admissible evidence.” Daubert, 509 U.S. at 596.
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`III. ANALYSIS
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`Supercell argues that Dr. Akl’s expert report in paragraphs 86 and 147 concerning element
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`1-B of the ’708 Patent and element 3 of the ’832 Patent ignores the Court’s construction of the
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`term character by “improperly draft[ing] the Court’s construction from the noun ‘symbol’ to the
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`adjective ‘symbolic.’” Dkt. No. 115 at 5. Supercell asks the Court to “strike Dr. Akl’s argument
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`that ‘[t]he visual depiction of the shapes and colors of the borders of the cards in Clash Royale . .
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`. is symbolic of the relative rarity of those cards.” Id. (citing Dkt. No. 115-2 at ¶¶ 86, 147).
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`Supercell asserts that “equating the ‘colors of the borders of the cards in Clash Royale’ as
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`a ‘character’ “runs afoul of the Court’s claim construction order.” The paragraphs in question
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`provide:
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`The visual depiction of the shapes and colors of the borders of the
`cards in Clash Royale, as explained above, is symbolic of the
`relative rarity of those cards, and the additional textual display of
`the card’s rarity in the Clash Royale is another example of a
`character to indicate rarity.
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`Dkt. No. 115-2 at ¶¶ 86, 147. Supercell takes issue with the use of the term “symbolic” instead of
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`“symbol,” and claims that Dr. Akl is arguing that the colors of the borders alone—omitting “the
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`shapes and” immediately prior to “colors of the borders”—are characters. Dkt. No. 115 at 6.
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`Supercell then points to Dr. Akl’s deposition where he states that “a visual depiction of
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`shapes and colors of the borders of the card is symbolic of the relative rarity of the card, and that
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`meets the Court's construction of pattern, which means symbol -- of character, sorry -- which
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`means symbol.” Id. (citing Dkt. No. 115-ExB at 190:3-8). Supercell argues that “Dr. Akl’s opinion
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`that the ‘colors of the borders of the cards in Clash Royale’ are indicative of a ‘character’ is
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`contrary to the Court’s claim construction order.” Id. The Court disagrees.
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`Supercell disputes the use of the word “symbolic” instead of “symbol,” an adjective and
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`noun version of the same concept, while not fully presenting Dr. Akl’s opinion. Regarding the
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`assertion that Dr. Akl is arguing that the color of the borders alone is a character, Supercell leaves
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`out the actual subject of the incompletely quoted sentence, which is clearly “[t]he visual depiction,”
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`modified by “of the shapes and colors of the borders of the cards.”
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`The Court reads Dr. Akl’s opinion as asserting that “the visual depiction of the shapes and
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`colors of the borders of the cards,” in its entirety, falls within the court’s construction of character
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`as “symbol” in the same way that the visual depiction of a red equilateral triangle with one of its
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`edges aligned horizontally and one corner pointed downward with a smaller and similar white
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`triangle oriented similarly collectively forms a symbol to yield right-of-way in a driving context.
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`IV. CONCLUSION
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`After due consideration, the Court DENIES Supercell’s Motion.
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`5 / 5
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`____________________________________
`ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
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`SIGNED this 3rd day of January, 2012.
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`SIGNED this 23rd day of January, 2021.
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