Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 1 of 13
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
`
`Case No. 6:21-cv-00898-ADA
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`ALMONDNET, INC.,
`
`
`
`
`
`AMAZON.COM, INC.; AMAZON.COM
`SERVICES LLC; and AMAZON WEB
`SERVICES, INC.,
`
`
`
`
`PLAINTIFF’S MOTION TO EXCLUDE CERTAIN OPINIONS OF W. CHRISTOPHER
`BAKEWELL AND TO STRIKE PORTIONS OF HIS EXPERT REPORT
`
`PUBLIC VERSION
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
`
`Case No. 6:21-cv-00898-ADA
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`ALMONDNET, INC.,
`
`
`
`
`
`AMAZON.COM, INC.; AMAZON.COM
`SERVICES LLC; and AMAZON WEB
`SERVICES, INC.,
`
`
`
`
`PLAINTIFF’S MOTION TO EXCLUDE CERTAIN OPINIONS OF W. CHRISTOPHER
`BAKEWELL AND TO STRIKE PORTIONS OF HIS EXPERT REPORT
`
`PUBLIC VERSION
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 2 of 13
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 2 of 13
`
`PUBLIC VERSION
`
`TABLE OF CONTENTS
`
`INTRODUCTION. ...00....ccccccssseesscessceecccessceesscsescsesscesscssccsescsesscecscsesseeeseesesescssesenseesseeeeseees 1
`
`REASONABLE ROYALTY BECAUSE
`
`THE COURT SHOULD EXCLUDE MR. BAKEWELL’S OPINION ON
`
`NON-INFRINGEING ALTERNATIVES
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 3 of 13
`
`TABLE OF AUTHORITIES
`
`Cases
`Finjan, Inc. v. Blue Coat Sys., Inc.,
`879 F. 3d 1299 (Fed. Cir. 2018) ................................................................................................ 1
`Glaukos Corp. v. Ivantis, Inc.,
`No. 18-cv-620, 2020 WL 10501852 (C.D. Cal. July 23, 2020) ................................................ 8
`Kim v. ConAgra Foods, Inc.,
` 465 F.3d 1312 (Fed. Cir. 2006) ................................................................................................ 6
`Niazi Licensing Corp. v. St. Jude Med. S.C., Inc.,
`30 4th 1339 (Fed. Cir. 2002) ..................................................................................................... 6
`Prism Techs. LLC v. Sprint Spectrum LP,
`849 F.3d 1360 (Fed. Cir. 2017) ................................................................................................. 8
`Radware, Ltd. v. F5 Networks, Inc.,
`No. 13-CV-02024-RMW, 2016 WL 590121 (N.D. Cal. Feb. 13, 2016) .................................. 7
`ResQNet.com, Inc. v. Lansa, Inc.,
`594 F.3d 860 (Fed. Cir. 2010) ................................................................................................... 1
`Sonos, Inc. v. D&M Holdings Inc.,
`No. CV 14-1330-WCB, 2017 WL 5633204 (D. Del. Nov. 21, 2017) ...................................... 7
`Uniloc USA, Inc. v. Microsoft Corp.,
`632 F.3d 1292 (Fed. Cir. 2011) ................................................................................................. 1
`Rules
`Fed. R. Civ. P. 37(c) ...................................................................................................................... 5
`
`
`
`ii
`
`PUBLIC VERSION
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 4 of 13
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 4 of 13
`
`PUBLIC VERSION
`
`I.
`
`INTRODUCTION
`
`Amazon’s damages expert Mr. W. Christopher BakewellPo
`
`His affirmative opinion on reasonable royalty should therefore
`
`be excluded. Mr. Bakewell also makes claims
`
`a. These opinions should be excluded under Rule 26. Finally,
`
`a. This alternatives is therefore not non-infringing if Mr. Bakewell assumes, as he must, that
`
`the patents are infringed for the purposes of his analysis, and this opinion should therefore be
`
`excluded.
`
`Il.
`
`
`THE COURT SHOULD EXCLUDE MR. BAKEWELL’S OPINION ON
`
`REASONABLE ROYALTY
`
`
`Mr. Bakewell correctly states in his opinion that
`
`.” Ex. 1, July 28 2023
`
`Rebuttal Report Regarding Damages (“Bakewell Rpt.”), § 123,
`
`. An opinion on reasonable royalty should must
`
`therefore “carefully tie proof of damages to the claimed invention’s footprint
`
`in the
`
`marketplace.” Jd., § 119, citing ResOQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 869 (Fed. Cir.
`
`2010) and Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1320 (Fed. Cir. 2011). Mr.
`
`Bakewell,however,
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 5 of 13
`
`While he acknowledges
`
`opine on
`
` He instead opines that
`
`
`
`, he does not
`
`
`
`
`
`
`
`
`
`.
`
` is not providing an apportionment
`
`analysis. Mr. Bakewell’s opinion on reasonable royalty should therefore be excluded.
`
`Mr. Bakewell’s reasonable royalty opinion has three parts.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`¶ 322. Mr. Bakewell has no evidence
`
` See, e.g., id.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`. See, e.g., id., ¶ 322, Exs.
`
`
`1 Mr. Bakewell does not explain why he does this for
`
`.
`
`. At his deposition, Mr. Bakewell
`
`
`
`2
`
`PUBLIC VERSION
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 6 of 13
`
`claimed
`
`In any case,
`
`
`
`
`
`
`
` does not apportion to the patents is suit or the specific economic
`
`benefits of the patents in suit to Amazon. Moreover, Mr. Bakewell’s
`
` is
`
`ultimately irrelevant to his opinion on reasonable royalty.
`
`
`
`Next,
`
` Mr. Bakewell concludes that
`
`
`
`
`
`
`
`
`
`
`
`Bakewell concludes
`
`, and concludes that
`
` Id., ¶ 313. Paradoxically, because Mr.
`
`, he cannot apportion to
`
` i.e.
`
`
`
`
`
`
`
`In his analysis of the effect of the Georgia Pacific factors on this baseline, Mr. Bakewell
`
`concludes that the impact of the apportionment factor,
`
`Id., ¶ 378. But that is the entirety of his analysis. While
`
`
`
`3
`
`
`
`
`
`
`
`
`
`
`
`
`
`, Mr. Bakewell does not analyze
`
`PUBLIC VERSION
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 7 of 13
`
`PUBLIC VERSION
`
`ee
`
`In his Factor 15 analysis of the hypothetical negotiation, Mr. Bakewell concludes
`
`scknole
`
`Id., § 391.
`
`In deposition, Mr. Bakewell
`
`Ex. 2 at 237:12-14. See also id. at 236:16-21; 241:7-16.
`
`This “analysis” provides
`
`a. leaving it to the jury to figure out on its own what the specific effect of the “concept of
`
`apportionment” would be at the hypothetical negotiation but providing no tools for the jury to
`
`do so. The paucity of this analysis is illustrated by
`
`Il
`
`THE COURT SHOULD EXCLUDE MR. BAKEWELL’S OPINIONS THAT ARE
`
`Mr. Bakewell provides opinions
`
`4
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 8 of 13
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 8 of 13
`
`PUBLIC VERSION
`
`Po The underlying opinions have thus not been disclosed as required under
`Federal Rule of Evidence 26(a) and (e), and even if it were appropriate for Mr. Bakewellf
`81 oes 201 know
`
`and cannot provide any detail as to the basis for these opinions, as required by Rule 702 and
`
`Daubert.
`
`There arePo opinions in Mr. Bakewell’s report. Po
`
`2 el cites 0
`Sois
`ee. the most Mr. Bakewell could say is:
`
`
`
`Ex. 2 at 208:9-209:9.
`
`Po is not disclosed in his expert reports. “If a party
`
`fails to provide information oridentify a witness as required by Rule 26(a) or(e), the party is
`
`not allowed to use that information or witness to supply evidence on a motion,at a hearing,or at
`
`a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c). a
`
`EEE 3s ic is oot bons
`I 2s 209 e<planatona
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 9 of 13
`
`, and must therefore be excluded under Rule 702 and Daubert. See, e.g.,
`
`Niazi Licensing Corp. v. St. Jude Med. S.C., Inc., 30 4th 1339, 1356-58 (Fed. Cir. 2002)
`
`(excluding as unreliable under Daubert portions of an expert report that offered nothing more
`
`than unsupported and conclusory opinions); cf. Kim v. ConAgra Foods, Inc., 465 F.3d 1312,
`
`1320 (Fed. Cir. 2006) (affirming grant of JMOL where “conclusory [expert] testimony” was the
`
`basis for the jury verdict). In addition, without knowing
`
`
`
` AlmondNet cannot address these theories at trial in its
`
`affirmative case (or really at all, as AlmondNet understands the Court does not typically permit
`
`an infringement expert to offer “reply” testimony to a non-infringement expert’s rebuttal). Such
`
`“sandbagging” brings undue prejudice to AlmondNet.
`
`The second Bakewell opinion at issue here is
`
` In discussing
`
` Mr. Bakewell states
`
`
`
`
`
`
`
`
`
` Ex. 1, ¶ 373. Mr. Bakewell cites to no discussions in support of this
`
`opinion, instead
`
`, although he
`
` In his deposition, Mr. Bakewell indicated that
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Ex. 2 at 210:11-22. See also id. at 212:2-5, 214:2-15.
`
`
`
`6
`
`PUBLIC VERSION
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 10 of 13
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 10 of 13
`
`PUBLIC VERSION
`
`Again, the technical opinionsspp‘[aa
`2: cisclosed in an expert report, and in
`fct here Mr, BkEE8g,
`
`Mr. Bakewell cannot provide the detail for this claim required by Rule 702 and Daubert, and
`
`AlmondNethas had not opportunity to address it in expert reports, and cannot effectively do so
`
`at trial. The prejudice from this failure is even more acute here, given the high likelihood of
`
`juror confusion arising from any claim that a defendant practices its own patents. Courts
`
`routinely grant motions to exclude evidence relating to the accused infringer’s own patents and
`
`applications, as such evidence has no probative value, is highly prejudicial, and “would likely
`
`distract and confuse the jury.” Radware, Ltd. v. F5 Networks, Inc., No. 13-CV-02024-RMW,
`
`2016 WL 590121, at *8 (N.D. Cal. Feb. 13, 2016). See also Sonos, Inc. v. D&M Holdings Inc.,
`
`No. CV 14-1330-WCB, 2017 WL 5633204, at *1 (D. Del. Nov. 21, 2017) (Bryson, C.J., sitting
`
`by designation) (accused infringer’s patents are “irrelevant to the issue of infringement and are
`
`potentially confusing to the jury.”).
`
`IV.
`
`THE COURT SHOULD EXCLUDE MR. BAKEWELL’S
`
`CONCERNING NON-INFRINGEING ALTERNATIVES BECAUSE
`
`
`_OPINIONS
`
`
`Me.Bk
`
`Icesis
`
`greater detail in the concurrently filed Plaintiff's Motion To Exclude Certain Opinions Of Dr.
`
`Henry Houh And To Strike Portions Of His Expert Report, it is black letter law that “the
`
`hypothetical-negotiation rubric for the assessment of reasonable royalty damages assumes that
`
`the asserted patents are valid and infringed.” Prism Techs. LLC v. Sprint Spectrum LP, 849
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 11 of 13
`
`F.3d 1360, 1369 (Fed. Cir. 2017) (emphases added). Consistent with that principle, any non-
`
`infringing alternatives proposed by a defendant in a patent case must, in fact, be non-infringing.
`
`See, e.g., Glaukos Corp. v. Ivantis, Inc., No. 18-cv-620, 2020 WL 10501852, at *11-12 (C.D.
`
`Cal. July 23, 2020) (excluding under Daubert opinions concerning an alleged non-infringing
`
`alternative because it infringed asserted claims). But Dr. Houh
`
`
`
`
`
`
`
`
`
`
`
`
`
`. Mr. Bakewell agrees
`
`Rather, he
`
`at 77:7-16
`
` Ex. 2 at 37:18-38:16, 40:3-43:1; see also id.
`
`
`
`
`
`). As addressed in the concurrent motion, Dr. Houh’s opinion on
`
`non-infringing alternatives should therefore be excluded, and Mr. Bakewell’s opinions
`
`
`
`
`
`Date: August 23, 2023
`
`
`
`, should likewise be excluded.
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`By: /s/ Reza Mirzaie
`
`Reza Mirzaie
`Marc A. Fenster
`Benjamin T. Wang
`Adam Hoffman
`James A. Milkey
`Amy E. Hayden
`James S. Tsuei
`Jonathan Ma
`Daniel B. Kolko
`
`
`
`8
`
`PUBLIC VERSION
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 12 of 13
`
`Jason M. Wietholter
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard 12th Floor
`Los Angeles, California 90025
`Tel: 310-826-7474
`Fax: 310-826-6991
`rmirzaie@raklaw.com
`mfenster@raklaw.com
`bwang@raklaw.com
`ahoffman@raklaw.com
`jmilkey@raklaw.com
`ahayden@raklaw.com
`jtsuei@raklaw.com
`jma@raklaw.com
`dkolko@raklaw.com
`jwietholter@raklaw.com
`
`Counsel for Plaintiff ALMONDNET, INC.
`
`
`
`
`
`
`
`
`9
`
`PUBLIC VERSION
`
`
`
`Case 6:21-cv-00898-ADA Document 145 Filed 08/30/23 Page 13 of 13
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to the Federal Rules of Civil Procedure and Local Rule CV-5, I hereby certify
`
`that, on August 23, 2023, all counsel of record who have appeared in this case are being served
`
`with a copy of the foregoing via electronic email.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Reza Mirzaie
` Reza Mirzaie
`
`
`
`
`
`
`
` 1
`
`PUBLIC VERSION
`
`
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
