Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`ANCORA TECHNOLOGIES, INC.,
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`Plaintiff,
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`CIVIL ACTION NO. 1:20-CV-00034-ADA
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`v.
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`LG ELECTRONICS INC. and LG
`ELECTRONICS U.S.A., INC.,
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`Defendants.
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`ANCORA TECHNOLOGIES, INC.,
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`Plaintiff,
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`JURY TRIAL DEMANDED
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`CIVIL ACTION NO. 1:20-CV-00034-ADA
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`v.
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`JURY TRIAL DEMANDED
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`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
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`Defendants.
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`PUBLIC VERSION
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`ANCORA’S OPPOSITION TO LG ELECTRONICS’ DAUBERT MOTION TO
`EXCLUDE AND STRIKE CERTAIN OPINIONS OFFERED BY DR. DAVID MARTIN
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 2 of 13
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`LGE’s four challenges to Dr. Martin’s opinions mischaracterize Dr. Martin’s opinions and
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`are untethered to any legal standards governing expert testimony. They should be rejected.
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`First, LGE challenges the sources Dr. Martin relies on to opine that a competitor’s software
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`product (E-FOTA) is similar to LGEs infringing over-the-air (OTA) update functionality. Mot. at
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`1-2. But challenges to the sources relied on by an expert go to weight, not admissibility.
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`Second, LGE seeks to strike opinions that Dr. Martin does not offer—namely, the ultimate
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`conclusion of whether LGE “directs” or “controls” third parties for purposes of divided
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`infringement. Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1022 (Fed. Cir.
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`2015) (en banc); see Mot. at 3-8. LGE’s argument is a straw man. Consistent with the fact that
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`“[t]he ultimate legal conclusions regarding direction and control” are “not a proper subject” of
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`expert testimony, Dr. Martin has not and will not offer any such opinion. Datatreasury Corp. v.
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`Wells Fargo & Co., 2010 WL 3768105, at *5 (E.D. Tex. Sept. 13, 2010).
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`Third, LGE asserts that Dr. Martin contradicts the Court’s Markman Order by opining that
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`the “agent” (recited in the Claim 1 step of “using an agent to set up a verification structure in the
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`erasable, non-volatile memory of the BIOS”) must involve operating system (OS)-level software.
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`Mot. at 8-9. LGE is flat-out wrong. Consistent with the parties’ agreement during the Markman
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`process that the “using an agent” step required use of OS-level software, the Court explained that
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`the prosecution “history clearly recites an agent as a ‘licensed program[] running at the OS level
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`interacting with a program verification structure stored in BIOS.’” D.I. 93 at 34.
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`. LGE’s
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`argument is factually incorrect and legally irrelevant. It should be rejected.
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 3 of 13
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`ARGUMENT
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`I.
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`DR. MARTIN’S OPINION THAT SAMSUNG’S E-FOTA IS SIMILAR TO LGE’S
`OTA UPDATE FUNCTIONALITY IS AMPLY SUPPORTED AND RELIABLE.
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`Citing no legal authority, LGE attacks as “unsupported” and “unreliable” Dr. Martin’s
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`opinion that E-FOTA (a software product sold by LGE’s competitor, Samsung) is technically
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`similar to the LGE technology accused of infringing the ’941 Patent. Mot. at 1-2.1 LGE’s attacks
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`go to the weight of Dr. Martin’s testimony, not its admissibility, and should be rejected.
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`LG’s central complaint—that Dr. Martin’s “opinion is not based on any source code” or
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`confidential “technical documents” but rather “public websites,” Mot. at 1-2—is not grounds for
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`exclusion under Fifth Circuit law. Rather, “questions relating to the bases and sources of an
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`expert’s opinion affect the weight to be assigned [to] that opinion rather than its admissibility and
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`should be left to the jury’s consideration.” Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d
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`546, 562 (5th Cir. 2004); see Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283, 1299 (Fed.
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`Cir. 2015) (“[D]isputes over the . . . the accuracy of the underlying facts are for the jury”).
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`LG also challenges Dr. Martin’s analysis as insufficiently “meaningful.” Mot. at 2. This,
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`too, is wrong.
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`1 Ancora asked Dr. Martin to assess the technical similarity between Samsung’s E-FOTA product
`(which was sold on the open market) and LG’s OTA Update solution so that Ancora’s damages
`expert, Mr. Robert Mills, could determine if E-FOTA could serve as one benchmark for
`establishing the commercial value of the patented technology to LG.
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`All exhibits are appended to the April 9, 2021 Declaration of Steven M. Seigel. All
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`emphases added by Ancora unless otherwise stated.
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`2
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 4 of 13
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` Notably, LG never states that Dr. Martin’s analysis is incorrect. And regardless, LG’s
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`critiques go to weight and not admissibility. See Bayer HealthCare LLC v. Baxalta Inc., 2019 WL
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`330149, at *5 (D. Del. Jan. 25, 2019) (holding that whether an expert has shown a “sufficient
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`degree of technical comparability” with allegedly comparable technology is an issue to “be
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`addressed through cross-examination, not exclusion”).
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`In sum, Dr. Martin’s E-FOTA opinions are well-supported, reliable, and admissible under
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`Daubert and Fed. R. Evid. 702.
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`II.
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`DR. MARTIN DOES NOT OPINE THAT LG DIRECTS AND CONTROLS THIRD
`PARTIES UNDER AKAMAI.
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`LG spends most of its Motion seeking to strike Dr. Martin’s purported opinion “that LGE
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`directs or controls various third parties in the over-the-air (OTA) update process rendering LGE
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`liable for direct infringement.” Mot at 3. To be clear, Dr. Martin has not and will not offer that
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`opinion because—as Ancora always has argued—it is not proper for an expert to opine on ultimate
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`conclusion of direction and control. Datatreasury, 2010 WL 3768105, at *5.2
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`What Dr. Martin has done is simply assume that the jury will agree at trial that—
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 5 of 13
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`actions are attributable to LGE. Thus, Dr. Martin’s opinion is that LGE directly infringed
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` The very references to “direct[ion] and control” that LGE cites make clear that Dr. Martin
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`is not offering any opinion on the ultimate issue of direction and control;
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`LGE knows this. Dr. Martin expressly confirmed at his deposition that he was not offering
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`an affirmative opinion that
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 6 of 13
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`Dr. Martin’s opinions in this regard are unquestionably proper. “Under settled evidence
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`law, an expert may express an opinion that is based on facts that the expert assumes, but does not
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`know, to be true. It is then up to the party who calls the expert to introduce other evidence
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`establishing the facts assumed by the expert.” Williams v. Illinois, 567 U.S. 50, 57 (2012). In short,
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`“the law is clear that . . . ‘experts are permitted to assume the underlying facts that form the basis
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`for their opinions.’” Cervantez v. Collier, 2019 WL 6727872, at *3 (W.D. Tex. Dec. 11, 2019)
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`(quoting Cromwell v. Wal–Mart Stores, Inc., 46 F. App’x 733, at *2 (5th Cir. Aug. 9, 2002)).
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`In sum, Dr. Martin has not opined that LGE directs and controls third parties. And he will
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`not do so at trial.4
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`III. DR. MARTIN CONSISTENTLY APPLIES THE PLAIN AND ORDINARY
`MEANING OF “USING AN AGENT TO SET UP A VERIFICATION STRUCTURE
`IN THE ERASABLE NON-VOLATILE MEMORY OF THE BIOS.”
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`LGE’s next line of attack is to incorrectly assert that Dr. Martin (1) applied a construction
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`of “using an agent to set up a verification structure . . .” that differed from the Court’s construction
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`and (2) applied different constructions for the “using an agent” term as between his infringement
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`and validity reports. Both arguments are wrong.
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`a.
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`The Court, the Federal Circuit, the Parties, and the Experts agree that “using
`an agent to set up a verification structure” requires use of an OS-level agent.
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`LGE first plays fast and loose with the Court’s Markman Order by asserting that the Court
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`held that “the term ‘agent’ . . . did not require an OS-level element.” Mot. at 8 (emphasis in
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`4 LGE’s Motion contains numerous misrepresentations of Dr. Martin’s opinions.
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 7 of 13
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`original). This is untrue. To begin, LGE omits that the Court offered only a single ruling as to the
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`term “agent” and the step in which it appeared (“using an agent to set up a verification structure in
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`the erasable, non-volatile memory of the BIOS”). Specifically, the Court ruled that the entire
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`“using an agent . . .” step should be given its plain and ordinary meaning, and that the term “agent”
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`used within that step should also be given its plain meaning “wherein the plain and ordinary
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`meaning [of] ‘agent’ is ‘a software program or routine.’” D.I. 93 at 37.
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`The Court also made clear, however, that this “software program or routine” referred to the
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`use of software operating at an OS-level. The Markman Order states this repeatedly. As the Court
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`explained: “The term ‘agent’ was added during prosecution to specifically elucidate that the closest
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`prior art systems, singly or collectively, do not teach licensed programs running at the OS level
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`interacting with a program verification structure stored in BIOS.’ The Examiner repeatedly
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`acknowledged his understanding that the word “agent” refers to such programs.” D.I. 93 at 31.
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`The Court thus explained that “[t]he [prosecution] history clearly recites an agent as a ‘licensed
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`program[] running at the OS level.’” Id. at 34 (quoting the prosecution history).
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`The Court’s conclusion that “an agent [w]as a ‘licensed program[] running at the OS level’”
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`comports with a long, unbroken line of Federal Circuit opinions and Examiner statements—each
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`likewise concluding that the ’941 Patent uses OS-level software to write verification structures to
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`the normally inaccessible BIOS. As the Federal Circuit explained:
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`[T]he applicants distinguished their invention over a combination of two
`references: one disclosed storage in the BIOS memory area by the BIOS
`software itself; the other disclosed software implemented in or through an
`operating system. The applicants explained that their invention differed
`from the prior art in that it both operated as an application running through
`an operating system and used the BIOS level for data storage and
`retrieval—a combination that was not previously taught and that an
`ordinarily skilled application writer would not employ.
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`Ancora Techs., Inc. v. Apple, Inc., 744 F.3d 732, 735–36 (Fed. Cir. 2014) (italics in original). This
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 8 of 13
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`conclusion flowed naturally from the Examiner’s Reasons for Allowance, which similarly stated:
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`[T]he closest prior art systems. singly or collectively, do not teach
`licensed programs running at the OS level interacting with a
`program verification structure stored in the BIOS to verify the
`program using the verification structure . . . . Further, it is well
`known . . . that a computer BIOS is not setup to manage a software
`license verification structure. The present invention overcomes this
`difficulty by using an agent to set up a verification structure in the
`erasable, non-volatile memory of the BIOS.
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`D.I. 44-3 (Examiner Reasons for Allowance).
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`These conclusions, moreover, should come as no surprise to LGE because LGE itself
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`argued during claim construction that “[t]he invention operates at the OS-level” and that
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`“[t]he purported breakthrough in applicants’ invention was to somehow allow the OS-level
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`programs to write to the BIOS memory.” D.I. 45 (Defs. Markman Br.) at 3; see D.I. 49 (Defs.
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`Responsive Markman Br.) at 14-17 (arguing that the entire invention was OS-level).
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`This admission by LGE is critical. Because Ancora and LGE both agreed that the “using
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`an agent . . .” step required the involvement of OS-level software,5 there was no dispute that OS-
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`level software was a necessary part of the “using an agent . . .” step. Because there was no dispute
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`on this issue, there was no reason for the parties to seek (or the Court to provide) a more specific
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`construction. Indeed, “claim construction need only ‘resolve the controversy’; it is not ‘an
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`obligatory exercise in redundancy’ where no dispute exists.” VTT Tech. Research Ctr. of Finland
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`Ltd. v. SiTime Corp., 2020 WL 3869200, at *3 (N.D. Cal. July 9, 2020) (quoting O2 Micro Int’l
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`5 Like LGE, Ancora also made clear “[o]ne of the core improvements of the ’941 Patent is that it
`overcame this prior art shortcoming by enabling OS-level programs to write (i.e., store) data to the
`BIOS.” D.I. 44 (Pltf. Markman Br.) at 13. Ancora also explained that “Prior to the ’941
`invention . . . it was not contemplated that operating system (‘OS’) level programs could interact
`with the BIOS at all—much less ‘us[e] an agent to setup a verification structure in the erasable
`non-volatile memory area of the BIOS.’” Id. at 2.
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 9 of 13
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`Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361-62 (Fed. Cir. 2008)).6
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`Finally, LGE’s own expert, Dr. Barber, did not disagree. Her report demonstrates that she
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`similarly understood
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`In sum, this Court, the Federal Circuit, the Examiner, the applicants, Ancora, and LGE
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`and its expert all agree that “using an agent to set up a verification structure . . .” requires use of
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`OS-level software. Dr. Martin’s opinions properly apply that agreed-upon conclusion.
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`b.
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`Dr. Martin’s infringement and validity opinions require use of an OS-level
`agent to perform the “using an agent to set up a verification structure” step.
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`Also incorrect is LGE’s argument that Dr. Martin “does not apply the same construction”
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`in his infringement and validity reports. Mot. at 8. In both reports, Dr. Martin consistently opined
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`that the step of “using an agent . . .” requires the use of an OS-level software program or routine.
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`Dr. Martin’s validity report correctly opines that OS-level software is required to satisfy
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`the “using an agent . . .” step. LGE’s prior art references fail to anticipate or render obvious the
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`’941 Patent
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` See, e.g., Ex. 6 (Martin Rebuttal
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`Rpt.) ¶¶ 92, 99, 106-113,151-163, 187, 197-198, 209-210, 219-220, 266-269, 276, 300-304.
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`Dr. Martin’s infringement reports also make clear that
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`6 See Eon Corp. IP Holdings v. Silver Spring Networks, 815 F.3d 1314, 1319 (Fed. Cir. 2016) (goal
`of claim construction is to “resolve a dispute about claim scope . . . raised by the parties”); Star
`Envirotech, Inc. v. Redline Detection, LLC, 2015 WL 12743875, at *3 (C.D. Cal. Apr. 30, 2015)
`(“where no dispute exists as to claim scope,” it is “inappropriate” to provide a construction).
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 10 of 13
`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 10 of 13
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 11 of 13
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`. He will not. Dr. Martin’s infringement and validity
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`opinions identically and consistently state that the step of “using an agent to set up a verification
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`structure” requires use of OS-level software programs or routines.
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`IV.
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`LGE’S COMPLAINTS ABOUT
`WRONG AND IRRELEVANT.
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` ARE FACTUALLY
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`LGE’s final argument is that Dr. Martin “mentions”
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`one portion of his report and then “never again mentions” them. Mot. at 9. This is simply false.
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`identifies no authority for its illogical theory that a court must strike an expert’s opinion that is
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`contained in one part of his report but not another.
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`LGE also claims that “Ancora never identified such certificates in their [sic] infringement
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` In any event, LGE
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`contentions.” See Mot. at 10. This, too, is false.
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`CONCLUSION
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`LGE’s Daubert Motion to exclude certain opinions of Dr. Martin should be denied.
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 12 of 13
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`
`
`/s/ Steven M. Seigel
`Charles Ainsworth
`State Bar No. 00783521
`Robert Christopher Bunt
`State Bar No. 00787165
`PARKER, BUNT & AINSWORTH, P.C.
`100 E. Ferguson, Suite 418
`Tyler, TX 75702
`903/531-3535
`charley@pbatyler.com
`rcbunt@pbatyler.com
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`Lexie G. White (Texas 24048876)
`SUSMAN GODFREY LLP
`1000 Louisiana Street, Suite 5100
`Houston, Texas 77002
`Tel: (713) 651-9366
`Fax: (713) 654-6666
`lwhite@susmangodfrey.com
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`Andres Healy (pro hac vice)
`Steven M. Seigel (pro hac vice)
`Nicholas S. Crown (pro hac vice)
`SUSMAN GODFREY LLP
`1201 Third Avenue, Suite 3800
`Seattle, Washington 98101
`Tel: (206) 516-3880
`Fax: 206-516-3883
`ahealy@susmangodfrey.com
`sseigel@susmangodfrey.com
`ncrown@susmangodfrey.com
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`Zachary B. Savage (pro hac vice)
`SUSMAN GODFREY LLP
`1301 Avenue of the Americas, 32nd Floor
`New York, New York 10019
`Tel: (212) 336-8330
`Fax: (212) 336-8340
`zsavage@susmangodfrey.com
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`COUNSEL FOR PLAINTIFF ANCORA
`TECHNOLOGIES, INC.
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`Date: April 9, 2021
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`Case 1:20-cv-00034-ADA Document 220 Filed 04/16/21 Page 13 of 13
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who have consented to electronic
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`service are being notified of the filing of this document via the Court’s CM/ECF system per Local
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`Rule CV-5(b)(1). I also hereby certify that LGE’s counsel of record are being served with a copy
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`of the foregoing document via electronic mail on this 9th day of April, 2021.
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`/s/ Steven M. Seigel
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` Steven M. Seigel
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