Case 6:21-cv-00569-ADA Document 198 Filed 01/31/23 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`Civil Case No. 6:21-cv-569-ADA
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`v.
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`GOOGLE LLC,
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`Defendant.
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`JURY TRIAL DEMANDED
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`PLAINTIFF TOUCHSTREAM TECHNOLOGIES, INC.’S
`REPLY FOR ITS MOTION TO EXCLUDE EXPERT
`TESTIMONY OF DR. KETAN MAYER-PATEL
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`Case 6:21-cv-00569-ADA Document 198 Filed 01/31/23 Page 2 of 7
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`I. INTRODUCTION
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`Because of IPR estoppel, Google limits its invalidity theories to prior art “systems” that
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`were allegedly “available to the public.” But Google failed to provide evidence that the allegedly
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`invalidating features shown in the patents and printed publications were ever actually incorporated
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`into a real-world system. Because Google’s expert lacks evidence that the invalidating features
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`were part of a single product “available to the public,” his opinions are not “based on sufficient
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`facts or data” and are not “the product of reliable principles and methods.” Fed. R. Ev. 702. Any
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`finding of invalidity without evidence that these systems actually existed and were publicly
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`available would not pass the “clear and convincing” standard and would be legally erroneous. Dr.
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`Meyer-Patel’s opinions on the GTS and Twonky systems should be excluded.
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`II. ARGUMENT
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`A.
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`Dr. Mayer-Patel lacks an evidentiary basis for his opinion that GTS and
`Twonky were actual systems “available to the public.”
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`Dr. Meyer-Patel opines that GTS and Twonky were real-world systems “publicly
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`available” before the filing of Touchstream’s patents. Ex. 1, Dr. Mayer-Patel Report, ¶ 79. But he
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`lacks evidence that the systems patched together from dozens of separate references ever actually
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`existed and were available to the public.
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`For GTS, among the 27 separate documents he uses to show the claim limitations, he cites
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`to a patent (GTS-8), a YouTube “roadmap” (GTS-7), a document titled “Deprecated GoogleTV
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`(formerly Mosaic)” (GTS-24), an “IP AV Command Protocol” (GTS-22), and a variety of third-
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`party blog posts and videos. From this, Dr. Meyer-Patel offers the opinion that, “As described by
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`the documents below, GTS was publicly available by at least November 9, 2010.” Ex. 1, Dr.
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`Mayer-Patel Report ¶ 79.
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`Case 6:21-cv-00569-ADA Document 198 Filed 01/31/23 Page 3 of 7
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`Put simply, this is not a competent opinion to present to a jury because Dr. Meyer-Patel
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`lacks a sound evidentiary basis to make such a claim. As he admitted, he has no evidence that the
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`features of the GTS-8 patent that he relied upon were ever actually incorporated into a real-world
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`product. Ex. 2, Dep. Dr. Mayer-Patel 196:7-198:25. He similarly admitted that he lacks any
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`evidence that the “IP AV Command Protocol” of GTS-22—which does not mention Google TV
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`or YouTube Remote but rather refers to a generic IP box and “TV running a browser”—was ever
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`part of the GTS system. Ex. 3, GTS-22, 2. GTS-24 states on its face that it was deprecated, and
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`the portions Dr. Meyer-Patel relies upon were printed with strikethrough. Ex. 4, GTS-24, 1. Dr.
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`Meyer-Patel spoke to no one at Google who could have discussed whether those stricken features
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`were present at the applicable time (or if they were ever incorporated and made public at all). Ex.
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`1, Dr. Mayer-Patel Report, ¶ 107; Ex. 2, Dep. Dr. Mayer-Patel 168:6-9; 238:8-11.
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`The only attempt to tie the disparate GTS references together was a declaration from
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`Google employee Mr. Levai. But that declaration discusses only 13 of the 27 references, and is
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`admittedly limited to YouTube Remote and YouTube Leanback. Ex. 2, Dep. Dr. Mayer-Patel,
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`237:21-25. The Levai declaration does nothing to support Dr. Meyer-Patel’s use of the GTS-8
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`patent, the “Deprecated GoogleTV (formerly Mosaic)” document (GTS-24), or the “IP AV
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`Command Protocol” (GTS-22). Ex. 1, Dr. Mayer-Patel Report, ¶ 79 (none of GTS-8, GTS-22, and
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`GTS-24 are supported by the Levai declaration).
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`Dr. Meyer-Patel’s opinions regarding the Twonky system are similarly deficient. He opines
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`that the “Twonky system was publicly available by at least March 31, 2009.” Ex. 1, Dr. Mayer-
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`Patel Report ¶111. But Dr. Meyer-Patel relies almost exclusively on a patent (T-1) and two patent
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`applications (T-7 and T-8), while citing sparingly to some other purportedly non-public
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`documentation. See Dkt. 177, 2-4 (Touchstream Motion to Exclude under Sotera, Twonky Charts).
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`Case 6:21-cv-00569-ADA Document 198 Filed 01/31/23 Page 4 of 7
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`To show that Twonky was a real, publicly available system, Dr. Meyer-Patel cites to the Schwartz
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`declaration. Ex. 1, Dr. Mayer-Patel Report ¶111. But that declaration does not discuss the T-1
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`patent or the T-7 and T-8 patent applications at all. See Dkt. 135-3, 1-5, Schwartz Declaration.
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`And Dr. Meyer-Patel admits that he has does not know, one way or the other, whether the features
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`of the patents and patent applications were ever actually incorporated into the real-world system.
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`Ex. 2, Dep. Dr. Mayer-Patel, 173:20-174:20. Without the T-1 patent and T-7 and T-8 references,
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`Dr. Meyer-Patel has no mapping for a majority of the claim limitations. See Dkt. 177, 2-4
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`(Touchstream Motion to Exclude under Sotera, Twonky Charts).
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`Contrary to Google’s assertions, Touchstream does not contend that prior art products can
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`never be proven through the use of multiple documents. But there must be evidence (1) proving
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`that the documents show the same, single product and (2) proving that the single product was
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`actually available to the public. The IP Innovations case illustrates that this is so, noting that the
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`two papers were published only a year apart by a professor and his student, and that the second
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`paper explicitly stated that the system was “used in a fourth year undergraduate course” and
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`“approximately 100 students have been exposed to the system over the course of 8 months.” IP
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`Innovation L.L.C. v. Red Hat, Inc., 2010 WL 9501469, at *5 (E.D. Tex. Oct. 13, 2010). From this,
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`the Court held that there was sufficient evidence that the Chan system was a single system in public
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`use at least by 1984. Id. Further, while Kyocera was not a public use case, it analyzed whether
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`separate references could qualify as a single publication, and the standards it applied are equally
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`applicable here: the defendant in that case asserted that 11 separate GSM “standards” docs were
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`one reference because they were all part of one standard. Kyocera Wireless Corp. v. ITC, 545 F.
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`3d 1340, 1351-52 (Fed. Cir. 2008). But the Federal Circuit disagreed, noting that the documents
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`were “authored by different subsets of authors at different times” each had “its own title and
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`Case 6:21-cv-00569-ADA Document 198 Filed 01/31/23 Page 5 of 7
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`separate page numbering. Id. Lacking evidence that they were all part of a single, coherent
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`reference, the Kyocera court held that “each specification, though part of the greater GSM
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`standard, stands as a separate document in its own right.” Id.
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`That is the case here too. Without any evidence showing that the various GTS and Twonky
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`documents show a single product, and without evidence that that single product was available to
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`the public, Dr. Meyer-Patel’s opinions are mere speculation. Federal Rule of Evidence 702 permits
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`expert testimony only where “the testimony is based on sufficient facts or data” and “the testimony
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`is the product of reliable principles and methods.” Fed. R. Ev. 702(b)–(c). Here, Google does not
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`offer sufficient facts to support Dr. Meyer-Patel’s opinion that the GTS and Twonky systems he
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`pieced together were actually “available to the public.” The Court should exclude them.
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`B.
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` Dr. Mayer-Patel offers no admissible testimony on his § 101 theories.
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`Google defends Dr. Meyer-Patel’s § 101 opinions on the basis that “he provides opinions
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`and supporting evidence that (1) the specific architecture that the patent purports to invent is not
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`innovative at all, and (2) that the general steps and components are also not technically innovative.”
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`Op. at 11-12. To support this, Google cites to ¶¶ 943–946 of Dr. Meyer-Patel’s report. Id. But
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`those paragraphs simply recite the legal arguments made in Google’s invalidity contentions. See
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`Ex. 6, Dr. Mayer-Patel Report, ¶¶ 943–946. His opinions add one reference to a Touchstream-
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`produced document, but he provides no analysis tying it to his legalistic § 101 analysis. Ex. 6,
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`Touchstream Memo. Reviewing Dr. Meyer-Patel’s § 101 opinions shows they add almost no
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`analysis to Google’s invalidity contentions. Ex. 7, Redlined Comparison of Dr. Mayer-Patel’s
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`Report to Google’s Invalidity Contentions; Ex. 1, Dr. Mayer-Patel Report, ¶¶ 943–946 . This
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`would not be helpful to a jury, and this opinion should be excluded.
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`Case 6:21-cv-00569-ADA Document 198 Filed 01/31/23 Page 6 of 7
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`III. CONCLUSION
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`Dr. Mayer-Patel’s invalidity theories regarding the GTS system and 35 U.S.C. 101 are
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`unreliable and not helpful to a jury and should be excluded.
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`Dated: January 19, 2023
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`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
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`Philip A Eckert, pro hac vice
`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
`Phone: (816) 474-6550
`Fax: (816) 421-5547
`peckert@shb.com
`rdykal@shb.com
`bwebb@shb.com
`jbergsten@shb.com
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`Counsel for Plaintiff Touchstream
`Technologie, Inc.
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`Respectfully submitted,
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`SHOOK, HARDY & BACON L.L.P.
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`/s/ Ryan D. Dykal
`Counsel for Plaintiff Touchstream
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`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
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`Case 6:21-cv-00569-ADA Document 198 Filed 01/31/23 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`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 19th day of January, 2023, I served the foregoing to
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`the following counsel of record via the e-mail addresses shown below:
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`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
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`Evan M. McLean, pro hac vice
`Michael C. Hendershot, pro hac vice
`Tharan Gregory Lanier, pro hac vice
`Gurneet Singh, 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
`Email: gsingh@jonesday.com
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