Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 1 of 14
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES,
`INC.
`
`Plaintiff
`
`v.
`
`GOOGLE LLC
`
`Defendant.
`
` Case No. 6:21-cv-569
`
`JURY TRIAL DEMANDED
`
`TOUCHSTREAM’S MOTION TO EXCLUDE EXPERT TESTIMONY OF
`DR. KETAN MAYER-PATEL AND MEMORANDUM IN SUPPORT
`
`1
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`

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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 2 of 14
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`I.
`
`II.
`
`III.
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`IV.
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`V.
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`Table of Contents
`
`INTRODUCTION
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`SUMMARY OF THE ARGUMENTS
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`STATEMENT OF THE FACTS
`
`A.
`
`B.
`
`The Patents-in-Suit.................................................................................................. 4
`
`Dr. Mayer-Patel’s invalidity report. ........................................................................ 5
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`LEGAL STANDARDS
`
`ARGUMENT
`
`A.
`
`B.
`
`C.
`
`Dr. Mayer-Patel’s invalidity opinions regarding the “GTS System” are unreliable
`and contrary to law.................................................................................................. 7
`
`Dr. Mayer-Patel’s opinions regarding the “Twonky System” are unreliable and
`contrary to law. ..................................................................................................... 10
`
`Dr. Mayer-Patel’s opinions regarding 35 U.S.C. § 101 are unhelpful and should be
`excluded. ............................................................................................................... 12
`
`2
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`3
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`4
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`5
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`7
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`VI.
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`CONCLUSION
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`I.
`
`INTRODUCTION
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`13
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`Google has a problem. To get its Inter Partes Review (“IPR”) petitions instituted, Google
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`agreed to not raise prior art in this Court that it raised or could have raised in IPR. Ex. F.
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`Defendant’s Sotera Stipulation. The board instituted review expressly based on this promise.
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`Google LLC., v. Touchstream Tech., No IPR2022-00795, Granting Institution of Inter Partes
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`Review, at 8-9 (P.T.A.B. Sep. 30, 2022); Google LLC., v. Touchstream Tech., No IPR2022-00793,
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`Granting Institution of Inter Partes Review, at 8-9 (P.T.A.B. Oct. 7, 2022); Google LLC., v.
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`Touchstream Tech., No IPR2022-00794, Granting Institution of Inter Partes Review, at 8-9
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`(P.T.A.B. Oct. 7, 2022).
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`2
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 3 of 14
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`Because it is precluded from offering invalidity theories based on patents or printed
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`publications, Google attempts to recast its prior art references as “systems.” Indeed, Google’s
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`invalidity expert, Dr. Mayer-Patel, cobbled together dozens of patents and publications in
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`concluding that they evidenced singular “systems” that render Touchstream’s patent claims
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`invalid. But Dr. Mayer-Patel’s opinions fell apart under scrutiny, and he admitted that he lacks
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`evidence that the features were ever actually embodied in a single prior art system.
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`Accordingly, the opinions of Dr. Ketan Mayer-Patel on these supposed “systems” are
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`unhelpful and unreliable, and the Court should exclude them.
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`II. SUMMARY OF THE ARGUMENTS
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`The court should exclude Dr. Ketan Mayer-Patel’s Google TV System (“GTS”) opinions
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`because they are unhelpful and unreliable. The alleged GTS system actually comprises at least
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`four distinct products: YouTube Leanback, YouTube Remote, Google TV, and the IP AV
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`Command Protocol. All told, Dr. Mayer-Patel required 27 separate references relating to these
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`systems to show each limitation of the Asserted Patents. Under questioning, Dr. Mayer-Patel
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`admitted that the only evidence he had to link these systems and references together was the
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`declaration of Google employee Mr. Levai. But Mr. Levai’s declaration was limited to YouTube
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`Leanback and YouTube Remote; it did not address Google TV or the IP AV Command Protocol
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`at all. Further, Dr. Mayer-Patel admitted that he does not know whether the GTS patent he used
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`for the bulk of the limitations was ever actually incorporated into the supposed GTS system.
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`Dr. Mayer-Patel’s opinions regarding the alleged Twonky system fares no better. As with
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`GTS, he failed to tie these various references together and provide evidence that they were an
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`actual, single prior art system. And as with GTS, Dr. Mayer-Patel relies on several patents and
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`patent applications that he has no evidence were ever practiced.
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 4 of 14
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`Finally, Dr. Mayer-Patel’s opinions regarding § 101 appear to be copied verbatim from
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`Google’s Invalidity Contentions and provide no useful analysis.
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`III.STATEMENT OF THE FACTS
`
`A. The Patents-in-Suit.
`
`Touchstream asserts three patents against Google: U.S. Patent No. 8,356,251 (“‘251
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`Patent”), U.S. Patent No. 8,782,528, (“‘528 Patent”), and U.S. Patent No. 8,904,289 (“‘289
`
`Patent”). The three patents share a specification and disclose improvements in play control of
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`content on a display device. The Asserted Claims recite, among other things, a system comprising
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`a personal computing device, server system, and display device. Figure 1 is an example of such a
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`system:
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 5 of 14
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`B. Dr. Mayer-Patel’s invalidity report.
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`On November 11, 2022, Google served the Expert Report of Dr. Ketan Mayer-Patel
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`Regarding Invalidity. The report contains three “primary” theories that combine dozens of prior
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`art references into three purported “systems”: GTS, Twonky, and Boxee. GTS is a Google-
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`authored collection of products including Google TV, YouTube Leanback, YouTube Remote, and
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`the IP AV Command Protocol. Twonky was a media-streaming solution based on the publically
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`available Digital Living Network Alliance standard and Universal Plug and Play standard. Boxee
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`was a media device with a traditional-style remote control. Dr. Mayer-Patel’s report does not point
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`to a single prior art reference for these systems. Instead, the purported GTS system spans 27
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`individual references; Twonky spans 20, and Boxee 32.
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`Among Dr. Mayer-Patel’s “system” references are various prior art patents. For instance,
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`to show many features of the alleged “GTS System,” Dr. Mayer-Patel cites a patent he refers to as
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`“GTS-8.” Similarly, Dr. Mayer-Patel cites a patent and two patent applications to show various
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`features of the alleged “Twonky System.” Dr. Mayer-Patel admits that he has no evidence that the
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`disclosures of these patents were ever actually incorporated into real-world systems.
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`IV. LEGAL STANDARDS
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`Federal Rule of Civil Procedure 26(a)(2) requires experts to disclose the basis for their
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`opinions:
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`“The report must contain:
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`(i) a complete statement of all opinions the witness will express and the
`basis and reasons for them; (ii) the facts or data considered by the witness
`in forming them; (iii) any exhibits that will be used to summarize or support
`them;”
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`Fed. R. Civ. P. 26. The Advisory Committee Notes explain they should be “a detailed and complete
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`written report, stating the testimony the witness is expected to present during direct examination,
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 6 of 14
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`together with the reasons therefor.” Fed. R. Civ. P. 26, Advisory Committee Notes—1993
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`Amendment (emphasis added).
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`Further, Federal Rule of Evidence 702 requires courts to act as gatekeepers of expert
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`testimony:
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`“A witness who is qualified as an expert by knowledge, skill, experience, training,
`or education may testify in the form of an opinion or otherwise if: (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.”
`
`Fed. R. Evid. 702. In evaluating the admissibility of expert testimony, a critical concern is whether
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`the testimony will help the trier of fact understand the issues. Daubert v. Merrel Dow Pharms.,
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`509 U.S. 579, 591 (1993); see also Fed. R. Evid. 702. The party offering the expert’s testimony
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`bears the burden of showing its admissibility by a preponderance of the evidence. Paz v. Brush
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`Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009).
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`In determining the validity of a patent, courts rely on 35 U.S.C. § 102 or 35 U.S.C. § 103,
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`which, respectively, bar issuance of a patent if a prior art reference anticipates it, or if several prior
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`art references combined render it an obvious improvement. Proving obviousness requires analysis
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`of where each claim limitation was found in the prior art, and how a person having ordinary skill
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`in the art (“POSA”) would have been motivated to combine them. As the Supreme Court
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`explained, “a patent composed of several elements is not proved obvious by merely demonstrating
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`that each of its elements was, independently, known in the prior art.” KSR v. Teleflex, 550 U.S.
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`398, 417 (2007).
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`A basic rule of anticipation is that all elements of the claim must be clearly found in a
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`single reference. In re Arkley, 455 F.2d 586, 587 (1972) (“[T]he [prior art] reference must clearly
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 7 of 14
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`and unequivocally disclose the claimed [invention] or direct those skilled in the art to the
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`[invention] without any need for picking, choosing, and combining various disclosures not directly
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`related to each other by the teachings of the cited reference.”) See also, Galderma Lab'ys, L.P. v.
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`Teva Pharms. USA, Inc., 799 F. App’x 838, 843 (Fed. Cir. 2020) (citing Studiengesellschaft Kohle,
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`m.b.H. v. Dart Indus., Inc., 726 F.2d 724, 727 (Fed. Cir. 1984). While an accused infringer may
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`use multiple references to show a single device or system that anticipates, those separate references
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`require evidence supporting that they indeed describe the same product. See Kyocera Wireless
`
`Corp. v. International Trade Com’n, 545, F.3d 1340, 1351 (Fed. Cir. 2008).
`
`V. ARGUMENT
`
`A. Dr. Mayer-Patel’s invalidity opinions regarding the “GTS System” are
`unreliable and contrary to law.
`
`Dr. Mayer-Patel’s report treats four separate products as a single “system” reference:
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`Google TV, YouTube Leanback, YouTube Remote, and the IP AV Command Protocol. Google
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`TV was a media streaming system that included a typical remote control and user interface on the
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`display device. See, e.g., Ex. A, Report of Dr. Mayer-Patel Regarding Invalidity, ¶¶ 91-92.
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`YouTube Leanback was a modified YouTube interface where a user could queue up videos to have
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`them auto-play. See, e.g., Ex. A, Report of Dr. Mayer-Patel Regarding Invalidity, ¶¶ 80-87.
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`YouTube Remote was another product that allowed users to adjust the queue and control that
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`YouTube experience. Id. Ex. A, Report of Dr. Mayer-Patel Regarding Invalidity, ¶¶ 79-110. The
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`“IP AV Command Protocol” was a paper by a Google employee who envisioned a conceptual,
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`open protocol that could be used with UPnP. See Ex. A, Report of Dr. Mayer-Patel Regarding
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`Invalidity, ¶¶ 79, 101-105.
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`Using 27 separate references, Dr. Mayer-Patel mixes and matches these different products
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`to craft a hypothetical prior art “system” that anticipates Touchstream’s ‘251 patent claims, and—
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 8 of 14
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`together with the Hayward reference (which is used only for the “location of the media player”
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`and “obtaining the media player” elements)—renders the ‘528 and ‘289 claims obvious. But Dr.
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`Mayer-Patel admitted in his deposition that he had no evidence that these four products ever
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`existed as a single system. For instance, Dr. Mayer-Patel admitted his knowledge of the actual
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`GTS system came from the documents referenced in the Levai declaration. Dep. of Dr. Mayer-
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`Patel at 171:15-18 (“Q. So your understanding of the GTS system comes from these documents
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`that you reference in the Levai declaration; is that right? A. Yes.”). But Mr. Levai’s declaration is
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`limited to YouTube Leanback and YouTube Remote. Ex. D, Levai Declaration at ¶ 5. Dr. Mayer-
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`Patel admitted that he spoke to no one about the operation of the actual GTS system, and had no
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`personal knowledge of it. Dep. of Dr. Mayer-Patel at 171:3-18. Dr. Mayer-Patel flat-out admitted
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`he lacked any evidence that GTS-22 was ever actually a part of a real prior art system. Id. at 238:8-
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`11 (“Q. Do you know whether this IP AV protocol is discussed in GTS-22 was ever actually
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`incorporated into the Google TV system? A. I am unaware.”).
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`It gets worse. Among the GTS references that Dr. Mayer-Patel relies upon is a patent
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`referred to as GTS-8. That reference is relied upon more heavily than any other. But under
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`questioning, Dr. Mayer-Patel admitted that he had no evidence that the disclosures of GTS-8 were
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`ever actually incorporated into an actual product:
`
`Q. What’s the basis for the understanding that [GTS-8] reflected the actual
`operation of the system?
`A. So, I don’t have a basis for the actual operation, but that GTS-8 describe the
`features of -- of GTS -- or incorporated the features of GTS or otherwise
`reflected the design that GTS was intending.
`Q. Do you understand that a disclosure in a patent doesn't necessarily mean that
`that patent’s practiced?
`A. I understand that, yes.
`Q. All right. So, is it possible that features taught in GTS-8 didn't actually exist in
`the GTS system at that time?
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 9 of 14
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`A. That is possible, but I suppose my inclusion of GTS-8 as describing the GTS
`system is that there was a connection between those that disclosed the patent in
`GTS-8 and the developers in GTS. And to the extent that the GTS system is
`reflected in the specification of GTS-8, that these -- that this -- that -- that the
`GTS-8 was the -- was -- what's the best way to say this? That GTS-8 reflected
`the design approach of the GTS developers.
`
`Dep. of Dr. Mayer-Patel at 196:7-198:16.
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`Dr. Mayer-Patel would also admit that, unless a feature in GTS-8 was shown in
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`another reference, he lacked any support that the feature was ever present in the alleged
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`GTS system:
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`Q. So, to the extent a feature in the GTS-8 patent is also included in the other
`documents that evidence the actual system, you can conclude that that feature
`did exist in the system, correct?
`A. That is correct.
`Q. But is it also the case that if a feature of the GTS-8 patent is not referenced in a
`document depicting the operation of the system, you don't have a basis to
`conclude that that feature was a part of the system; is that correct?
`A. I can’t say for sure.
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`Id. at 198:13-25.
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`The Kyocera case is illustrative for why Google’s GTS system theory cannot withstand
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`scrutiny. In that case, the court found that the defendant could not assert the Global System for
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`Mobile Communications (“GSM”) standard as a single piece of prior art because it was not a single
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`coherent document that could be assigned consistent authors or dates of creation. Kyocera Wireless
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`Corp. v. International Trade Com’n, 545, F.3d 1340, 1351 (Fed. Cir. 2008). Different authors
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`wrote different pieces, at different times, and did not explicitly incorporate the other documents as
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`references. Id. at 1351 (citing Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1282
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`(Fed. Cir. 2000)).
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`Similarly, Dr. Mayer-Patel cannot show that various GTS references evidence the same
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`singular system. In fact, Google’s GTS theory is far worse than Kyocera: Dr. Mayer-Patel has no
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 10 of 14
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`evidence that some features were ever implemented at all. The best he can do is state that the
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`various references “reflected the design approach of the GTS developers.” Dep. of Dr. Mayer-
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`Patel, 197:4-198:25. But that is a far cry from evidence of a single, extant system. Further, Dr.
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`Mayer-Patel does not even explain who the “GTS developers” are: YouTube, Google TV, and the
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`IP AV Command Protocol were all separate projects. See Dep. of Mayer-Patel, 193:194:22. And
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`the 27 GTS references include many different authors at many different times. Ex. A, Report of
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`Dr. Mayer-Patel Regarding Invalidity, ¶¶ 79-110. Notably, the term “GTS” does not actually
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`appear in any of the documents—showing that it was never considered a single system until this
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`litigation.
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`There is a role for true prior art “systems” in patent litigation. Sometimes, there is not a single
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`reference that describes a single real-world system. In such a case, the defendant must prove that
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`the documents are related and truly evidence a single piece of prior art. See, e.g., IP Innovation
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`L.L.C. v. Red Hat, Inc. WL 9501469 (2010 E.D. Tex) (two research papers were treated as one
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`reference because they described the same real-world system and were written by a student and
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`the supervisor). But here, Dr. Mayer-Patel lacks evidence linking the 27 GTS documents to a
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`single, real-world system.
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`Because the GTS references cannot be tied to a single system, and because Dr. Mayer-Patel
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`admits that he lacks evidence that many of the features were ever implemented at all, his opinions
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`are inherently unreliable and unhelpful and should be excluded.
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`B. Dr. Mayer-Patel’s opinions regarding the “Twonky System” are unreliable
`and contrary to law.
`
`Dr. Mayer-Patel’s analysis of the Twonky system suffers from the same deficiencies as
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`GTS. Like his GTS opinions, his Twonky analysis relies heavily on patents and patent applications,
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`referred to as T-1, T-7, and T-8. Many of his mapped claim limitations come exclusively from
`
`10
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 11 of 14
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`these patents: “synchronization code” / “unique identification code,” storing “a record establishing
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`an association,” signals or messages “specifying a [video] file to be acted upon,” identification of
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`a “particular media player,” “converting into corresponding programming code” / “identifying
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`[corresponding] programming code.” Ex. A, Report of Dr. Mayer-Patel Regarding Invalidity, ¶¶
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`496-501, 514-525, 533-538, 543-546. As with the GTS-8 patent, Dr. Mayer-Patel has no evidence
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`that these patents were actually practiced by the real-world Twonky system:
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`Q. And so do you know what features of system, as it existed, actually were
`disclosed in the patent application -- or the patents that you reference?
`A. I don't have an analysis of the system with respect to those patents. But because
`these patents were developed by the people who developed the Twonky system,
`I understood that the patents were related to the Twonky system and would be
`obvious to combine with the Twonky system as it relates to the same subject
`matter.
`Q. Understood. But you don't know one way or another whether the disclosures
`in the Twonky patents were actually practiced by the Twonky system; is that
`correct?
`A. I did not do an analysis of the elements of the Twonky system that -- that may
`have been disclosed in the patents.
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`Dep. of Dr. Mayer-Patel at 174:3-20.
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`Dr. Mayer-Patel also admitted that features in the non-patent references might also not
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`have been incorporated into the system—he simply did not know one way or the other. Id. at 175:5-
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`8 (Q. Is it possible that features were written up that were never actually implemented? A. Is it
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`possible? That may be possible. I can’t say that it was impossible.”). In other words, he is
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`speculating. Notably, Dr. Mayer-Patel did not speak to anyone regarding the actual Twonky
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`system. Id. at 177:25-178:7. And the Schwartz declaration references at least two separate Twonky
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`products—TwonkyBeam and Twonky Media Manager—while merely stating that the Twonky
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`references are “true and accurate copies representative of various aspects of the aforementioned
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`Twonky products.” Ex. C, Schwartz Dec. art ¶¶ 1-2. The Schwartz declaration does not detail
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 12 of 14
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`which “aspects” belong to which product, nor which “aspects” were actually present in the real-
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`world Twonky product.
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`As with GTS, Dr. Mayer-Patel’s opinions rely on patents and literature that he cannot tie
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`to a single system, and that he does not know whether were actually practiced. Dr. Mayer-Patel’s
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`opinions regarding the supposed Twonky system should be excluded.
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`C. Dr. Mayer-Patel’s opinions regarding 35 U.S.C. § 101 are unhelpful and
`should be excluded.
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`Touchstream is moving separately for partial summary judgment of validity under § 101.
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`See D.I. 134. To the extent this Court does not grant Touchstream’s motion, it should exclude Dr.
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`Mayer-Patel’s § 101 opinions as being unhelpful to a jury.
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`Dr. Mayer-Patel provides no analysis of how the asserted patents are directed to an abstract
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`concept, nor how they lack any inventive concept. Ex. A, Report of Dr. Mayer-Patel Regarding
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`Invalidity, ¶¶ 939-946. Instead, he recites verbatim Google’s largely legal positions from its
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`invalidity contentions. Ex. E, Defendant’s Final Invalidity Contentions at 41-47. Other courts
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`agree this is inappropriate. See, e.g., Numatics, Inc. v. Balluff, Inc., 66 F. Supp. 3d 934, 945 (E.D.
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`Mich. 2014) (excluding expert opinions where “the pictures, charts, and diagrams are the same.
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`The citations are identical. The prose is indistinguishable down to the punctuation, leading to only
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`one possible conclusion: the report was ghost-written by Balluff’s attorneys as a legal brief
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`disguised (thinly) as an expert disclosure.”).
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`More is required of expert testimony than parroting the attorney’s arguments. These
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`opinions should be excluded as unhelpful to the trier of fact because “an expert witness who is
`
`merely a party’s lawyer’s avatar contributes nothing useful to the decisional process.” Id. at 941
`
`et. seq. (citing Fed. R. Evid. 702; Fed. R. Civ. Pro 26(a)(2)(B), 37(c)).
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 13 of 14
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`VI. CONCLUSION
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`Dr. Mayer-Patel’s invalidity opinions regarding the alleged GTS and Twonky systems are
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`unsupported and unreliable. He fails to establish that many of the most important references were
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`ever actually practiced, let alone that the dozens of references show singular, real-world systems.
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`Additionally, his opinions regarding § 101 opinions are unhelpful reproductions of Google’s
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`invalidity contentions.
`
`Dated: December 29, 2022
`
`Respectfully submitted,
`
`SHOOK, HARDY & BACON L.L.P.
`
`/s/ Ryan D. Dykal
`Counsel for Plaintiff Touchstream
`
`Gary M. Miller, pro hac vice
`Justin R. Donoho, pro hac vice
`111 S. Wacker Drive, Suite 4700
`Chicago, IL 60606
`(312) 704-7700
`Fax: 312-558-1195
`Email: gmiller@shb.com
`Email: jdonoho@shb.com
`
`Michael W. Gray (TX Bar No. 24094385
`Fiona A. Bell (TX Bar No. 24052288)
`Andrew M. Long (TX Bar No. 24123079)
`600 Travis Street, Suite 3400
`Houston, TX 77002
`Phone: (713) 227-2008
`Fax: (713) 227-9508
`mgray@shb.com
`fbell@shb.com
`amlong@shb.com
`
`Ryan D. Dykal, pro hac vice
`B. Trent Webb, pro hac vice
`Jordan T. Bergsten, pro hac vice
`Philip A Eckert, pro hac vice
`SHOOK, HARDY & BACON L.L.P.
`2555 Grand Boulevard
`Kansas City, MO 64108
`Phone: (816) 474-6550
`Fax: (816) 421-5547
`peckert@shb.com
`rdykal@shb.com
`bwebb@shb.com
`jbergsten@shb.com
`
`Counsel for Plaintiff Touchstream Technologies, Inc.
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`Case 6:21-cv-00569-ADA Document 141 Filed 01/05/23 Page 14 of 14
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`CERTIFICATE OF SERVICE
`
`Pursuant to the Federal Rules of Civil Procedure and the Local Rules for the Western
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`District of Texas, I hereby certify that on the 29th day of December, 2022, I served the foregoing
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`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/ Ryan D. Dykal
`Attorney for Plaintiff
`
`14
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