Case 1:20-cv-00034-ADA Document 236 Filed 04/27/21 Page 1 of 8
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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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`JURY TRIAL DEMANDED
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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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`SAMSUNG ELECTRONICS CO., LTD.,
`and SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`JURY TRIAL DEMANDED
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`DEFENDANTS LG ELECTRONICS INC. AND LG ELECTRONICS U.S.A., INC.’S
`REPLY IN SUPPORT OF DAUBERT MOTION TO EXCLUDE AND STRIKE
`CERTAIN OPINIONS OFFERED BY DR. DAVID MARTIN
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`Public Version
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`Case 1:20-cv-00034-ADA Document 236 Filed 04/27/21 Page 2 of 8
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`LG Electronics Inc. and LG Electronics U.S.A., Inc. (collectively, “LGE”) submit this
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`reply in support of their motion to exclude certain opinions of Ancora’s expert Dr. David Martin.
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`I.
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`DR. MARTIN’S OPINIONS REGARDING SAMSUNG’S E-FOTA ARE
`UNSUPPORTED AND UNRELIABLE.
`Ancora argues that Dr. Martin’s opinions should be allowed because his lack of analysis
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`goes to weight and not admissibility. Dkt. No. 213-1 (“Opp.”) at 2-3. However, Dr. Martin’s
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`opinions are fundamentally flawed such that they violate the first prong of Rule 702, as well as
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`longstanding law regarding reliability. Fed. R. Evid. 702(b) (“the testimony [must be] based on
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`sufficient facts or data”); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993) (the trial
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`judge must “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant
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`to the task at hand.”); Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356, 1364 (Fed. Cir.
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`2008) (“[t]he court, in its role as gatekeeper, must exclude expert testimony that is not reliable and
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`not specialized.”). Because Dr. Martin did not base his opinions “on sufficient facts or data”
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`regarding Samsung’s E-FOTA, his opinions are unreliable and should be excluded.
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`Ancora does not dispute—because it cannot—that Dr. Martin did not analyze any source
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`code or technical materials for Samsung’s E-FOTA to support his conclusion that Samsung’s E-
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`FOTA is
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`. Opp. at 2,
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`n.1. Ancora does not even address Dr. Martin’s admitted failure to “perform any analysis of the
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`E-FOTA EMM Console System,” or his conclusion that this E-FOTA Console relates to Samsung
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`software updates (and not LGE’s). Dkt. No. 197 (“Mot.”) at 2; Dkt. No. 197-3, ¶ 85.
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`As one example illustrating the unreliability of his opinions, the
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`s. Dkt. No. 199-23, Ex. A; Dkt. No. 199-15 at 32:11-22, 87:18-88:12, 89:20-24.
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`Dr. Martin does not attempt to identify how E-FOTA
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`Case 1:20-cv-00034-ADA Document 236 Filed 04/27/21 Page 3 of 8
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`. Similarly, his cursory review of E-FOTA public websites in 2021 is not tied, expressly
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`or implicitly, to the technical operation of LGE’s accused functionality from 2013 to 2018. Indeed,
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`Dr. Martin’s E-FOTA opinions are not even tied to his own assertion that “Defendants infringe []
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`in two separate and independent ways.” Dkt. No. 199-7 [Martin Phone App’x.], ¶¶ 20-22. He
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`provides no such analysis for Samsung’s E-FOTA. Dr. Martin does not identify a single similarity,
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`or even one difference, between E-FOTA and the myriad of accused LGE mobile devices.
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`Underscoring his failure to perform a reliable analysis, Dr. Martin and his team spent many
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`hundreds of hours to review over
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`of source code to try understanding how LGE’s products
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`operate. Id., ¶14. Yet, without any analysis of any E-FOTA source code, or even a single technical
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`document, Dr. Martin somehow concludes that LGE’s accused devices operate
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` Dkt. No. 197-3 [Martin Main Rpt.], ¶ 83. There is no “weight” issue
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`here. Dr. Martin’s opinions regarding the E-FOTA are facially conclusory and unreliable.
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`II.
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`DR. MARTIN’S OPINIONS REGARDING “DIRECTION OR CONTROL”
`SHOULD BE EXCLUDED.
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`Ancora argues that Dr. Martin does not offer any conclusion about direction and control.
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`Opp. at 3-4. Ancora posits that Dr. Martin merely assumes the fact that such direction and control
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`exist in his opinions and unequivocally represents that Dr. Martin “will not offer [an] opinion” at
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`trial about direction and control. Id. at 3-5. However, Ancora then states that “Dr. Martin’s
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`opinions in this regard are . . . proper,” because Dr. Martin may “assume the underlying facts that
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`form the basis for [his] opinions.” Id. at 5 (emphasis added). Ancora appears to present an
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`artificial distinction between an opinion and a factual assumption in order to provide an end-around
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`for Dr. Martin to testify on direction and control by way of his “assumption.” Given Ancora’s
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`representation that he will offer no such opinion, the Court should issue an order that Dr. Martin
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`is precluded from testifying regarding direction and control at trial. Sundance, 550 F.3d at 1364
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`2
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`Case 1:20-cv-00034-ADA Document 236 Filed 04/27/21 Page 4 of 8
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`(“[t]he court, in its role as gatekeeper, must exclude expert testimony that is not reliable and not
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`specialized, and which invades the province of the jury to find facts and that of the court to make
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`ultimate legal conclusions.”) (emphasis added).
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`III.
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`DR. MARTIN’S OPINION ON “USING AN AGENT” SHOULD BE EXCLUDED.
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`The Court construed “agent” to mean “a software program or routine,” adopting Ancora’s
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`proposed construction. Dkt. No. 93 at 28, 36 (rejecting Defendants’ proposed construction under
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`pre-AIA 35 U.S.C. § 112, ¶ 6). The Court did not further limit “agent” to be an “OS-level”
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`program, and neither party even proposed such additional limitation.1 Id. By interpreting “agent”
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`to require an OS-level program, Dr. Martin erroneously applies a claim construction different from
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`the Court’s, and his opinions based on that erroneous construction should be precluded. Chicago
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`Mercantile Exch., Inc. v. Tech. Research Grp., 782 F. Supp. 2d 667, 673 (N.D. Ill. 2011); see also
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`Canon, Inc. v. Color Imaging, Inc., 227 F. Supp. 3d 1303, 1311 (N.D. Ga. 2016) (“Court cannot
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`allow parties to argue” claim a construction that is “contrary to its prior claim construction order.”).
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`Ancora’s cherry-picked statements from the parties’ Markman briefs and lengthy
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`arguments to support its new construction confirm that it is attempting an end-around the
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`Court’s construction to inject a new limitation under the guise of “plain and ordinary meaning.”
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`Opp. at 5-7. Moreover, resorting to the patent and file history to support its belated construction
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`of “agent” is a tacit admission that the “OS-level” limitation is not present in the Court’s
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`construction. Indeed, Ancora runs afoul of its own arguments and cited cases striking expert
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`testimony seeking to import limitations from the specification and prosecution history. Dkt.
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`No. 194 at 2-6 (citing, inter alia, Huawei Techs., Co, Ltd v. Samsung Elecs. Co., 340 F. Supp.
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`1 Ancora mischaracterizes LGE’s arguments in the Markman briefs. LGE made clear that the
`“agent” is not at the OS-level: “Though each step of claim 1 is performed at the OS-level, the
`‘agent’ itself operates outside of the operating system . . . . The ‘agent’ performs its claimed
`function without invoking OS-level functionality.” Dkt. No. 52 at 11, n.11 (emphasis added).
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`3
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`Case 1:20-cv-00034-ADA Document 236 Filed 04/27/21 Page 5 of 8
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`3d 934, 968 (N.D. Cal. 2018) (“an expert’s opinion that seeks to limit the full scope of a term’s
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`plain and ordinary meaning must be stricken.”); Maxell, Ltd. v. Apple Inc., 2020 WL 8269548, at
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`*21 (E.D. Tex. Nov. 11, 2020) (striking expert opinion that “use[d] embodiments from the
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`specification to limit [a] term’s plain and ordinary meaning”); CardSoft, Inc. v. VeriFone Sys.,
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`Inc., 2012 WL 12895875, at *2-*3 (E.D. Tex. June 3, 2012) (expert opinions on “the proper
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`scope of [patent] claims” are inadmissible); Sundance, Inc. v. DeMonte Fabricating Ltd., 550
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`F.3d 1356, 1364 n.6 (Fed. Cir. 2008) (“[A]llowing a witness to testify before the jury on claim
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`construction would be improper.”).
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` In its Supplemental Claim Construction Order, the Court analyzed the record Ancora cites
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`but did not conclude that “agent” must include an “OS-level” program. Dkt. No. 93 at 31-32.
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`Also, while recognizing that the “agent” could be an OS level program, the Court did not narrow
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`the plain and ordinary meaning of “agent” to require an OS-level program. Id. at 32. Similarly,
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`Dr. Barber recognizes that, under the Court’s construction,
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`. Opp. at 8.
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`A.
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`Dr. Martin Did Not Apply the Court’s or His Construction Consistently.
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`Dr. Martin relies heavily on “agent” being limited to an “OS-level” program in his rebuttal
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`validity report. Mot. at 8. In contrast, the term “OS-level” never appears in his infringement
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`report. Ancora’s attorney argument is an obvious attempt to backfill Dr. Martin’s infringement
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`report that contains no opinion limiting the “agent” to the OS-level. Ancora states that Dr. Martin’s
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`infringement reports “make clear that the accused products rely on OS-level software programs
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`or routines.” Opp. at 8 (emphasis added). However, Ancora cites to statements that certain apps
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`may operate at the OS-level while identifying no language limiting them to the OS-level. Id. at 9.
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`This distinction is meaningful because, to rebut invalidity, Dr. Martin and Ancora primarily argue
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`that certain prior art fails to disclose an OS-level agent. The claimed “agent” must operate at the
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`4
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`Case 1:20-cv-00034-ADA Document 236 Filed 04/27/21 Page 6 of 8
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`OS-level (and exclude any other agents like BIOS-level agents) in Dr. Martin’s invalidity report,
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`but the same “agent” may operate at the OS-level and not exclude other agents in his infringement
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`analysis. The importance of this distinction is underscored by Dr. Martin’s “two separate and
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`independent”
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` analyses. Dkt. No. 199-7, ¶¶ 20-22; Declaration of Elizabeth
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`Chiaviello in Support of LGE’s Reply, Ex. A [Martin Depo.] at 52:21-54:6. His
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`”
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`analysis has no OS-level agent because
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`. Mot. At 9.
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`This confirms that the “agent” is not limited to the OS-level in Dr. Martin’s infringement report,
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`while it is so limited in his invalidity report. Recognizing this fatal flaw, Ancora now argues for
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`the first time that these two separate theories somehow overlap such that the
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`”
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`relies on the OS-level agent set out in the
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` Opp. at 10, n. 7 (citing to Dr.
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`Martin’s “
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` This argument confirms that Dr. Martin applied a different
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`understanding for the “agent” in his “
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`”—one where the agent is not limited to
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`the OS-level. Because Dr. Martin applies different constructions for the “agent” across his reports,
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`and even across his two separate infringement theories, his testimony should be excluded.
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`IV. DR. MARTIN SHOULD BE PRECLUDED FROM TESTIFYING ABOUT
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`Ancora argues that Dr. Martin discussed
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` in his report. Opp. at 10. Even
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`a cursory review of the pages cited confirms there is no mention of
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`, much less
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`a meaningful disclosure or discussion regarding
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`. Ancora’s attempt to backfill
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`Dr. Martin’s report using attorney argument is not permissible. Accordingly, Dr. Martin should
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`be prohibited from offering testimony regarding
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` at trial.
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`V.
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`CONCLUSION
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`Dr. Martin’s opinions on Samsung’s E-FOTA, LGE’s purported direction and control of
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`third parties, the “agent” term, and
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` are unreliable, and should be excluded at trial.
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`5
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`Case 1:20-cv-00034-ADA Document 236 Filed 04/27/21 Page 7 of 8
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`Date: April 20, 2021
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`Respectfully submitted,
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`/s/ Elizabeth M. Chiaviello
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`Winstol D. Carter, Jr.
`Texas Bar No. 03932950
`winn.carter@morganlewis.com
`Thomas R. Davis
`Texas Bar No. 24055384
`thomas.davis@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`1000 Louisiana Street, Suite 4000
`Houston, Texas 77002-5006
`T. 713.890.5000
`F. 713.890.5001
`
`Collin W. Park
`collin.park@morganlewis.com
`District of Columbia Bar No. 470486
`Natalie A. Bennett
`natalie.bennett@morganlewis.com
`Illinois Bar No. 6304611
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Avenue, NW
`Washington, D.C. 20004-2541
`T. 202.739.3000
`F. 202.739.3001
`
`Elizabeth M. Chiaviello
`Texas Bar No. 24088913
`elizabeth.chiaviello@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`1717 Main Street, Suite 3200
`Dallas, Texas 75201-7347
`T. 214.466.4000
`F. 214.466.4001
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`Attorneys for Defendants LG Electronics
`Inc. and LG Electronics U.S.A., Inc.
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`6
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`Case 1:20-cv-00034-ADA Document 236 Filed 04/27/21 Page 8 of 8
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`CERTIFICATE OF SERVICE
`The undersigned certifies that a true and correct copy of the foregoing document was served
`via the Court’s CM/ECF system on all counsel of record who have appeared in this case via
`electronic mail per Local Rule CV-5.
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`/s/ Elizabeth M. Chiaviello
`Elizabeth Chiaviello
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`7
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