Case 6:21-cv-00569-ADA Document 137 Filed 01/03/23 Page 1 of 6
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`GOOGLE LLC,
`
`
`Defendant.
`
`Civil Case No. 6:21-cv-569-ADA
`
`JURY TRIAL DEMANDED
`
`U.S. District Judge Alan Albright
`
`PUBLIC VERSION - REDACTED
`
`TOUCHSTREAM TECHNOLOGIES, INC.’S MOTION TO EXCLUDE CERTAIN
`OPINIONS AND TESTIMONY OF DEFENDANT’S DAMAGES EXPERT
`CHRISTOPHER A. MARTINEZ AND MEMORANDUM IN SUPPORT
`
`INTRODUCTION
`
`Touchstream respectfully requests that the Court exclude certain opinions and testimony
`
`of Google’s damages expert, Christopher Martinez, which are unreliable, unhelpful, and
`
`inadmissible. Mr. Martinez relies heavily on the royalty rate from
`
` to opine
`
`on damages. But courts frequently exclude such opinions, holding that litigation settlements are
`
`too different from the hypothetical negotiation in a patent case to form a reliable basis for damages.
`
`Touchstream respectfully submits that the Court should do the same here.
`
`LEGAL STANDARD
`
`An expert can give an opinion only if the opinion is “based on sufficient facts or data” and
`
`“the product of reliable principles and methods,” and if the expert “has reliably applied the
`
`principles and methods to the facts of the case.” Fed. R. Evid. 702. The party offering the expert
`
`testimony bears the burden of establishing its admissibility by a preponderance of proof.
`
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n.10 (1993).
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`GOOGLE LLC,
`
`
`Defendant.
`
`Civil Case No. 6:21-cv-569-ADA
`
`JURY TRIAL DEMANDED
`
`U.S. District Judge Alan Albright
`
`PUBLIC VERSION - REDACTED
`
`TOUCHSTREAM TECHNOLOGIES, INC.’S MOTION TO EXCLUDE CERTAIN
`OPINIONS AND TESTIMONY OF DEFENDANT’S DAMAGES EXPERT
`CHRISTOPHER A. MARTINEZ AND MEMORANDUM IN SUPPORT
`
`INTRODUCTION
`
`Touchstream respectfully requests that the Court exclude certain opinions and testimony
`
`of Google’s damages expert, Christopher Martinez, which are unreliable, unhelpful, and
`
`inadmissible. Mr. Martinez relies heavily on the royalty rate from
`
` to opine
`
`on damages. But courts frequently exclude such opinions, holding that litigation settlements are
`
`too different from the hypothetical negotiation in a patent case to form a reliable basis for damages.
`
`Touchstream respectfully submits that the Court should do the same here.
`
`LEGAL STANDARD
`
`An expert can give an opinion only if the opinion is “based on sufficient facts or data” and
`
`“the product of reliable principles and methods,” and if the expert “has reliably applied the
`
`principles and methods to the facts of the case.” Fed. R. Evid. 702. The party offering the expert
`
`testimony bears the burden of establishing its admissibility by a preponderance of proof.
`
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n.10 (1993).
`
`
`
`Case 6:21-cv-00569-ADA Document 137 Filed 01/03/23 Page 2 of 6
`
`ARGUMENT
`
`I.
`
`
`OPINIONS AND TESTIMONY THAT RELY ON THE
` SHOULD BE EXCLUDED UNDER ESTABLISHED PRECEDENT
`
`To determine a royalty rate for the patents-in-suit, Mr. Martinez relied on the
`
`
`
` attached as Exhibit 1. See Ex. 2, Martinez Report at 21-22 ¶¶ 61-62, 28-31 ¶¶ 86-92;
`
`Ex. 3, Martinez Dep. Tr. 71:13-73:13. Mr. Martinez’s reliance on the
`
` is
`
`improper because the
`
` is not comparable to a hypothetically negotiated
`
`Touchstream-Google Agreement,
`
`. Mr. Martinez
`
`acknowledges this, Ex. 3 at 89:6-90:17, but as with other experts that courts have excluded, his
`
`“analysis virtually ignores” this “drastically different backdrop than the hypothetical negotiation
`
`involving two willing licensors, as would be the case here. Federal Circuit precedent is hostile
`
`toward using litigation settlement agreements in proving a reasonable royalty, except in limited
`
`circumstances.” M2M Sols. LLC v. Enfora, Inc., 167 F. Supp. 3d 665, 678 (D. Del. 2016).
`
`The record is clear that the
`
`
`
`, that it provided a drastically different backdrop than the hypothetical negotiation in this
`
`case, and that Mr. Martinez did not, as required, sufficiently account for those differences in
`
`forming his opinions that rely on the
`
`. For example:
`
`
`
`2
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 6:21-cv-00569-ADA Document 137 Filed 01/03/23 Page 3 of 6
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Under these circumstances, Mr. Martinez’s opinions that rely on the
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` should be excluded. While “there is no per se rule barring reference to settlements
`
`simply because they arise from litigation,” AstraZeneca AB v. Apotex, 782 F.3d 1324, 1336 (Fed.
`
`Cir. 2016), the Federal Circuit has noted the “longstanding disapproval of relying on settlement
`
`agreements to establish reasonable royalty damages.” LaserDynamics, Inc. v. Quanta Computer,
`
`Inc., 694 F.3d 51, 77 (Fed. Cir. 2012). Thus, “Federal Circuit precedent is hostile toward using
`
`litigation settlement agreements in proving a reasonable royalty, except in limited circumstances.”
`
`M2M, 167 F. Supp. 3d at 678. Here, there is minimal probative value in using the
`
`
`
` to calculate a reasonable royalty, as it is not comparable to a negotiation between two
`
`willing parties, and Mr. Martinez has not met his burden to show otherwise. See (1) through (5),
`
`above. Thus, exclusion of his opinions and testimony that rely on the
`
` is
`
`3
`
`
`
`Case 6:21-cv-00569-ADA Document 137 Filed 01/03/23 Page 4 of 6
`
`warranted. See Sprint Commc’ns Co. v. Comcast IP Holdings, LLC, 2015 WL 456154, at *2 (D.
`
`Del. Jan. 30, 2015) (excluding expert testimony about license agreements resulting from litigation
`
`settlements, stating, “[The expert] provides no information regarding the nature of the litigation or
`
`the context of the settlements, and thus there is no reason to believe that the settlements in question
`
`are comparable”); AVM Techs., LLC v. Intel Corp., 927 F. Supp. 2d 139, 144 (D. Del. 2013)
`
`(excluding expert testimony, stating, “a single settlement agreement on a different patent without
`
`any analysis of the settlement context is not a reliable method for calculating damages”); Baltimore
`
`Aircoil Co., Inc. v. SPX Cooling Techs. Inc., 2016 WL 4426681, at *24 (D. Md. Aug. 22, 2016)
`
`(excluding expert testimony, stating, “Beyond acknowledging the actual terms of the settlement
`
`agreement, [the expert] offers no detail as to the litigation posture of [the settling parties] at the
`
`time of settlement. No amount of cross-examination can cure this defect”).
`
`CONCLUSION
`
`For the foregoing reasons, Touchstream requests that this Court exclude opinions and
`
`testimony of Google’s proffered expert Christopher Martinez regarding a reasonable royalty, and
`
`any other opinions and testimony to the extent they rely on the
`
`.
`
`Date: December 29, 2022
`
`Respectfully submitted,
`
`TOUCHSTREAM TECHNOLOGIES, INC.
`
`By:
`
` /s/ Justin R. Donoho
`One of Its Attorneys
`
`Michael W. Gray (TX Bar No. 24094385)
`Fiona A. Bell (TX Bar No. 24052288)
`Andrew M. Long (TX Bar No. 24123079)
`SHOOK, HARDY & BACON L.L.P.
`600 Travis Street, Suite 3400
`Houston, TX 77002
`(713) 227-2008
`Fax: 713-227-9508
`
`Ryan D. Dykal, pro hac vice
`B. Trent Webb, pro hac vice
`Jordan T. Bergsten, pro hac vice
`SHOOK, HARDY & BACON L.L.P.
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`Fax: (816) 421-5547
`
`4
`
`
`
`Case 6:21-cv-00569-ADA Document 137 Filed 01/03/23 Page 5 of 6
`
`Email: rdykal@shb.com
`Email: bwebb@shb.com
`Email: jbergsten@shb.com
`
`
`Email: mgray@shb.com
`Email: fbell@shb.com
`Email: amlong@shb.com
`
`Gary M. Miller, pro hac vice
`Justin R. Donoho, pro hac vice
`SHOOK, HARDY & BACON L.L.P.
`111 S. Wacker Drive, Suite 4700
`Chicago, IL 60606
`(312) 704-7700
`Fax: 312-558-1195
`Email: gmiller@shb.com
`Email: jdonoho@shb.com
`
`
`
`
`Counsel for Plaintiff Touchstream Technologies, Inc.
`
`5
`
`
`
`Case 6:21-cv-00569-ADA Document 137 Filed 01/03/23 Page 6 of 6
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to the Federal Rules of Civil Procedure and the Local Rules for the Western
`
`District of Texas, I hereby certify that on the 29th day of December, 2022, I served the foregoing
`
`to the following counsel of record via the e-mail addresses shown below:
`
`Michael E. Jones
`Patrick C. Clutter
`Shaun William Hassett
`Potter Minton PC
`110 N College, Suite 500
`Tyler, TX 75702
`Tel: 903-597-8311
`Email: mikejones@potterminton.com
`Email: patrickclutter@potterminton.com
`Email: shaunhassett@potterminton.com
`
`Evan M. McLean, pro hac vice
`Michael C. Hendershot, pro hac vice
`Tharan Gregory Lanier, pro hac vice
`Jones Day
`1755 Embarcadero Road
`Palo Alto, CA 94303
`Tel: (650) 739-3939
`Email: emclean@jonesday.com
`Email: mhendershot@jonesday.com
`Email: tglanier@jonesday.com
`
`Edwin O. Garcia, pro hac vice
`Jones Day
`51 Louisiana Avenue, N.W.
`Washington, DC 20001
`Tel: (202) 879-3695
`Email: edwingarcia@jonesday.com
`
` /s/ Justin R. Donoho
`Attorney for Plaintiff
`
`
`
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
