Case 6:12-cv-00799-JRG Document 262-1 Filed 01/26/15 Page 1 of 5 PageID #: 9463
`Case 6:12—cv—00799—JRG Document 262-1 Filed 01/26/15 Page 1 of 5 Page|D #: 9463
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`EXHIBIT A
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`EXHIBIT A
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`

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`Case 6:12-cv-00799-JRG Document 262-1 Filed 01/26/15 Page 2 of 5 PageID #: 9464
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`DLA Piper LLP (US)
`1000 Louisiana Street, Suite 2800
`Houston, Texas 77002-5005
`www.dlapiper.com
`
`Claudia Wilson Frost
`claudia.frost@dlapiper.com
`T 713.425.8450
`F 713.300.6050
`
`January 26, 2015
`
`The Honorable Rodney Gilstrap
`U.S. District Court for the Eastern District of Texas
`211 W. Ferguson
`Tyler, Texas 75702
`
`Re:
`
`C.A. No. 6:12-cv-799-JRG; Invensys Systems, Inc. v. Emerson Electric Co., et al.
`
`Dear Judge Gilstrap:
`
`Invensys requests permission to file a motion to strike the expert reports of Dr. Harry
`Direen, a defense expert who performed tests on some of Defendants’ flowmeters, and to
`exclude his testimony.1 Dr. Direen’s reports should be stricken because: 1) Dr. Direen’s tests
`rely on Defendants’ C32 prototype, which the Court has already ruled was untimely disclosed
`and cannot be used, 2) there is no evidence that the 9739 transmitter Dr. Direen tested was
`manufactured before the priority date, and 3) Defendants failed to disclose all the data Dr. Direen
`considering in preparing his report in violation of Rule 26(a)(2)(B)(ii).
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`I.
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`The Court Has Ruled That Defendants Cannot Rely on the C32 Prototype.
`
`For his original October 4 report, Dr. Direen built and tested a hybrid Altus/C32
`flowmeter apparently in an effort to support Defendants’ invalidity theory. But at a hearing on
`November 12, 2014, the Court ruled that Defendants could not rely on the C32. Accordingly,
`Dr. Direen’s tests of his Altus/C32 hybrid should be stricken.
`
`II.
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`There Is No Evidence That the 9739 Transmitter Dr. Direen Tested Is Prior Art.
`
`In his October 4 report, Dr. Direen also performed tests on Defendants’ 9739 transmitter,
`apparently in an attempt to show that the 9739 invalidates Invensys’s patents.2 All of Invensys’s
`patents have a priority date before 1999. Although Defendants began selling the 9739
`transmitter before the priority date, it was modified after that date.
`In fact, Defendants’ own
`documents reveal at least three software upgrades to the 9739 after 1999. Nothing in Dr.
`Direen’s report indicates the provenance of the 9739 transmitter he tested or what software
`version it was running. Nor is there any evidence that pre-1999 9739 transmitters had the same
`
`1 Dr. Direen served two reports. Dr. Direen’s October 4, 2014, report covers testing of a hybrid
`C32/Altus flowmeter he built and Defendants’ 9739 transmitter. Dr. Direen’s December 5,
`2014, report covers tests of Defendants’ 2400S transmitter.
`2 Defendants overhauled the 9739 transmitter around 2010. The new 9739 is often referred to as
`the “9739 MVD” and has been accused of infringement. The old 9739 did not infringe.
`
`

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`Case 6:12-cv-00799-JRG Document 262-1 Filed 01/26/15 Page 3 of 5 PageID #: 9465
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`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Two
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`capabilities as 9739s manufactured after the priority date. In addition, the 9739 transmitter does
`not come with flowtubes. There is no way to determine whether Dr. Direen used modern
`flowtubes in his tests, which could potentially affect his test results. Thus, there is no evidence
`that Dr. Direen’s tests relate to a system that is actually prior art. Accordingly, Dr. Direen’s
`9739 test results should be stricken because they are unreliable and irrelevant. See Johnson v.
`Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (per curiam).
`
`III.
`
`Defendants Did Not Provide All the Information Dr. Direen Considered.
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`A.
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`Defendants Did Not Comply with Their Disclosure Requirements.
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`Defendants also failed to comply with Rule 26(a)(2)(B)(ii)’s requirement that experts
`disclose all the facts they considered in rendering their opinions. In ¶ 7 of his December 5, 2014
`report, Dr. Direen states that he logged data files for both the 2400S transmitter and the 700
`enhanced core processor he used in his tests. These files would have included information on
`mass flow rate, amplitude of the sensor signals, and frequency of the flowtube oscillation among
`other things. In addition, it appears that Dr. Direen used this data to generate the graphs included
`in his report. Although Dr. Direen considered these data files in reaching his opinions, none of
`these data files were ever produced in blatant disregard of Rule 26(a)(2)(B)(ii).
`In addition,
`although Dr. Direen modified the source code for the 2400S in conducting his experiments, he
`provides only a broad overview of these alterations without explaining the specific changes he
`made to the code.
`
`Defendants also failed to provide raw test data for any of Dr. Direen’s tests of the 9739
`transmitter or the hybrid Altus/C32 that were the subject of his original October 4 report. This
`data is necessary to allow a full evaluation of his conclusions.3
`
`Finally, Invensys made multiple requests for permission to inspect Dr. Direen’s test
`facilities and the flowmeters he used. But counsel for Defendants stonewalled,
`ignoring
`Invensys’s repeated requests, and ultimately refused to respond, despite assurances that they
`would. (The time for expert discovery has now closed.)
`
`B.
`
`Defendants’ Failure to Disclose Prejudiced Invensys.
`
`the 2400S tests (even though he
`Dr. Direen’s failure to provide test data for
`acknowledged logging it), raw data for the 9739 and hybrid Altus/C32 tests, or an inspection of
`his facilities, the flowmeters, or details of the modifications he made to the code necessarily
`
`3 Dr. Direen did provide some spreadsheets along with his report. This appears to be data
`output from the flowmeter, not the raw sensor data before any processing.
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`Case 6:12-cv-00799-JRG Document 262-1 Filed 01/26/15 Page 4 of 5 PageID #: 9466
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`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Three
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`impede Invensys’s ability to analyze the basis of Dr. Direen’s conclusions. These problems are
`only exacerbated by the non-standard methodology Dr. Direen employed for some of his tests
`and the evident unreliability of the what little data he did produce.
`
`Dr. Direen’s conclusions in his October 4 report are based almost entirely on the trace
`signal of his oscilloscope, presented in a video accompanying the report. But Dr. Christopher
`Rahn, Invensys’s rebuttal expert, has stated in his report that no expert in this field would rely
`solely on an oscilloscope trace. An oscilloscope is useful for visualizing the signal, but an expert
`would also consider the raw sensor data. Dr. Direen provides no explanation or basis for his
`non-standard methodology.
`
`In fact, Dr. Direen’s report makes only one (uncited) reference to the sensor data. Dr.
`Direen claims that the data “shows that the flowtube never stopped oscillating” because the
`“amplitude of the sensor signal was always greater than zero.” It is unclear what data Dr. Direen
`is referring to. The spreadsheets accompanying Dr. Direen’s report appear to have been
`generated by the flowmeter electronics because they contain fields such as “flowrate” and
`“density,” which would not be generated by an oscilloscope. But this is not the raw data an
`expert would normally rely on.
`
`In addition, a sensor signal with an amplitude greater than zero does not support Dr.
`Direen’s conclusion that the flowtube never stopped oscillating. As disclosed in Invensys’s
`patents (and apparently undisputed by Defendants), measurement error from a number of sources
`may cause the sensor signal to have an amplitude greater than zero, even when the flowtube is
`stationary. See ʼ062 Pat. 16:46-64 (discussing zero offset).
`
`Finally, Dr. Direen’s sensor data is unreliable. Graphs accompanying Dr. Direen’s report
`show at least one instance in which the sensor amplitude did not diminish, even though the drive
`signal had been turned off. Without a drive signal, the flowtubes will naturally slow down,
`decreasing the amplitude of the oscillations. Moreover, the other sensor signal behaved entirely
`differently, showing a sudden drop in amplitude, followed by a slow steady decay. This
`discrepancy in the behavior of the amplitude data demonstrates a serious problem with the
`manner in which the test was conducted or the equipment used. No reasonable expert would rely
`on data of this nature as an accurate representation of the actual movement of the flowtubes.
`
`For the foregoing reasons, Invensys requests permission to file a motion to strike Dr.
`Direen’s expert reports.
`
`

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`Case 6:12-cv-00799-JRG Document 262-1 Filed 01/26/15 Page 5 of 5 PageID #: 9467
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`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Four
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`cc:
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`All Counsel of Record (via ECF)
`
`Respectfully submitted,
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost