Case 6:21-cv-00898-ADA Document 201 Filed 09/21/23 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:21-cv-00898-ADA
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`v.
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`Defendants.
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`ALMONDNET, INC.,
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`AMAZON.COM, INC.; AMAZON.COM
`SERVICES LLC; and AMAZON WEB
`SERVICES, INC.,
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`REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO EXCLUDE CERTAIN
`OPINIONS OF W. CHRISTOPHER BAKEWELL AND TO STRIKE PORTIONS OF
`HIS EXPERT REPORT
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`PUBLIC VERSION
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`Case 6:21-cv-00898-ADA Document 201 Filed 09/21/23 Page 2 of 7
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`I.
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`AMAZON’S IS INCORRECT THAT MENTIONING THE NEED FOR
`APPORTIONMENT IS APPORTIONMENT, AND THAT FEDERAL CIRCUIT
`HOLDINGS ON APPORTIONMENT DO NOT APPLY TO ACCUSED
`INFRINGERS
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`Amazon does not deny Mr. Bakewell’s opinion is that the reasonable royalty in this case
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`is some undefined amount less than the
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` in what he argues is the
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`most comparable agreement. Amazon argues Mr. Bakewell has “accounted” for apportionment
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`by recognizing it is necessary, but cannot point to anywhere where he actually determines what
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`that apportionment should be. Opp. at 4-5. He thus leaves it entirely up to the jury to figure out
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`how to apportion on its own, with no guidance on how to do so. In other words, he does not
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`“carefully tie proof of damages to the claimed invention’s footprint in the marketplace.”
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`Amazon tries to confuse the issue by arguing that Mr. Bakewell has complied with the
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`standards for comparability, but comparability is not apportionment, unless it is argued that the
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`rate in the comparable license is apportioned. See, e.g., Elbit Sys. Land & C4I Ltd. v. Hughes
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`Network Sys., LLC, 927 F.3d 1292, 1299-300 (Fed. Cir. 2019). Neither Mr. Bakewell nor Amazon
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`argues the
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` royalty in the comparable license is “pre-apportioned” in this
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`sense, instead repeatedly stating that it requires further apportionment. Amazon also cites
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`Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1227 (Fed. Cir. 2014) for the principle that an
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`expert can rely on prior licenses that apply a royalty to an entire product, rather than just the
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`components or features of licensed products that are comparable to those accused in the present
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`case. Opp. at 6.. But the expert in Ericsson relied on specific evidence that the parties to the
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`hypothetical negotiation would follow this per-unit licensing practice. 773 F.3d at 1228 (“As the
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`testimony at trial established, licenses are generally negotiated without consideration of the
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`EMVR, and this was specifically true with respect to the Ericsson licenses relating to the
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`Case 6:21-cv-00898-ADA Document 201 Filed 09/21/23 Page 3 of 7
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`technology at issue.”). Mr. Bakewell cites to no such evidence. In fact, he has no evidence of how
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`the
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` in the license was calculated or what it was applied to. Dkt. 129 at 2.
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`Amazon also argues Mr. Bakewell is not required to apportion anyway, claiming the
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`Federal Circuit’s rulings in cases like VirnetX only apply to patentees. Opp. at 5-6. VirnetX and
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`other cases refer to the patentee because they are motions against the patentee or its experts, and
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`because most Daubert motions for failure to apportion are against the patentee, as accused
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`infringers generally seek to minimize damages as much as possible. But no case holds that the
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`case law on apportionment does not apply to the opinions of experts for accused infringers. Quite
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`the opposite. For example, one of the cases cited by Amazon expressly applies VirnetX and other
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`Federal Circuit precedent on apportionment in ruling on a motion to exclude the reasonable
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`royalty opinion of the accused infringer’s rebuttal damages expert. Personalized Media
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`Commc’ns, LLC v. Apple, Inc., 2021 WL 662237, at *2, *6-7 (E.D. Tex. Feb. 20, 2021) (“[P]roof
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`of damages must be carefully tied to ‘the claimed invention’s footprint in the market
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`place.’ VirnetX, Inc. v. Cisco Sys., 767 F.3d 1308, 1327 (Fed. Cir. 2014).”). And this Court’s own
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`jury instructions make no distinction between the parties in instructing the jury on apportionment.
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`See, e.g, Ex. A, U.S. Well Servs., Inc. v. Halliburton Co., No. 6:21-cv-367-ADA, Dkt. No. 454 at
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`27; Ex. B, Hafeman v. LG Elecs. Inc., 6:21-cv-00696-ADA-DTG, Dkt. No. 239 at 32; Ex. C,
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`Textron Innovations Inc. v. SZ DJI Tech. Co., No. 6:21-cv-00740-ADA, Dkt. No. 301 at 45; see
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`also Faulkner v. Arista Records LLC, 2014 WL 4547824, at *19 (S.D.N.Y. Sept. 15,
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`2014) (citing Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006)) (the
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`“standard for a rebuttal expert witness is the same as for any expert witness”).
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`II.
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`AMAZON’S CLAIM THAT MR. BAKEWELL CAN ACT AS A MOUTHPEICE
`FOR UNDISCLOSED OPINIONS OF DR. HOUH CONTRADICTS THE ORDER
`OF THIS COURT ON COURT MIL NO. 23
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`Amazon does not deny that: (a) Mr. Bakewell provides opinions that
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`Case 6:21-cv-00898-ADA Document 201 Filed 09/21/23 Page 4 of 7
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`but which are not disclosed in Dr. Houh’s reports; and (b) Mr. Bakewell does not know and cannot
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`provide any detail as to the details or basis for these opinions. Amazon argues that Mr. Bakewell
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`should nevertheless be permitted to act as a mouthpiece for Dr. Houh’s undisclosed opinions
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`because AlmondNet could have asked Mr. Houh about these opinions in deposition. Opp. at 7.
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`However, this Court has made clear that experts in this case are limited to the opinions in their
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`reports. Dkt. 104, Court MIL No. 23 (“No expert witness may testify to expert opinions outside
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`the established parameters of her/his expert report”.). Mr. Houh cannot therefore cure through
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`deposition testimony his failure to disclose these opinions under Rule 26, and Amazon certainly
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`cannot put the burden on AlmondNet to depose him on undisclosed opinions. Moreover, any such
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`deposition testimony from Dr. Houh would not have allowed Mr. Bakewell to testify about the
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`basis for Mr. Houh’s opinions, as Mr. Bakewell did not disclose in his report, and did not in fact
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`know, what the basis for that testimony was. Dkt. 129 at 5-6.
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`The cases Amazon relies on in its opposition do not say what Amazon thinks they say.
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`Finalrod notes that the fact that a damages expert may rely on the technical opinions of a technical
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`expert “is not carte blanche for a damages expert to introduce undisclosed opinions of the
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`technical expert.” Finalrod IP, LLC v. Endurance Lift Sols., Inc., 2021 WL 4906217 (E.D. Tex.
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`Oct. 20, 2021). Finalrod then held that the damages expert was permitted to rely on the technical
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`expert in that case because (a) the opinions at issue had in fact been disclosed and adequately
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`supported in the technical expert’s report; and (b) the damages expert relied on evidence in record
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`in addition to the opinion of the technical expert sufficient to support his opinion. Id. Amazon
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`does not argue that either circumstance apply here. Finalrod then excluded a different opinion of
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`the damages expert that was not disclosed by the technical expert, and in dicta noted the prejudice
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`from such a failure could theoretically be mitigated by a deposition. But the holding of the Court
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`Case 6:21-cv-00898-ADA Document 201 Filed 09/21/23 Page 5 of 7
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`was that the damages expert’s opinion was excluded because he “may have received this opinion
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`from [the technical expert], but [the technical expert] never disclosed that opinion or disclosed
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`any analysis to properly support that opinion. Id. at 3. The Court also noted that “[i]mportantly,
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`even [the damages expert] could not recall how [the technical expert] articulated the conclusions
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`Blok attributed to him,” as is the case here. Id.
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`Notably, in Finalrod Judge Payne is expressly distinguishing the line of cases he relies on
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`in Amazon’s other case, Personalized Media. Id. at 2. Personalized Media was decided solely on
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`the basis of Federal Rule of Evidence 702, making no mention of Federal Rules of Civil Procedure
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`26 or 37. And even its ruling on Rule 702 is distinguishable from this case, as the damages
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`expert’s report in that case provided a detailed discussion of the technical expert’s opinion
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`regarding costs of a non-infringing alternative, and was also based on the damages expert’s own
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`experience, neither of which applies to the Bakewell opinions at issue here. See Personalized
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`Media, 2021 WL 662237, at *3.
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`III. THE FACT DR. HOUH GIVES LIP SERVICE TO ASSUMING INFRINGEMENT
`DOES NOT CHANGE THE FACT HE DOES NOT
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`As addressed in greater detail in the concurrently filed Reply In Support of Plaintiff’s
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`Motion To Exclude Certain Opinions Of Dr. Henry Houh And To Strike Portions Of His Expert
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`Report, while Dr. Houh claims he assumed Amazon’s infringement for the purposes of his non-
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`infringing alternatives opinion, the only “non-infringement arguments” Houh offers for
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`Amazon’s proposed non-infringing alternatives are exactly the same as the non-infringement
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`arguments he offers for the Accused Products. Mot. (Dkt. No. 134) at 2-4. Therefore, if Mr. Houh
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`and Mr. Bakewell both assume infringement, as they must for the purposes of their damages
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`opinions, the proposed alternative cannot be non-infringing.
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`Case 6:21-cv-00898-ADA Document 201 Filed 09/21/23 Page 6 of 7
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`Date: September 15, 2023
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`Respectfully submitted,
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`By: /s/ Reza Mirzaie
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`Reza Mirzaie
`Marc A. Fenster
`Benjamin T. Wang
`Adam Hoffman
`James A. Milkey
`Amy E. Hayden
`James S. Tsuei
`Jonathan Ma
`Daniel B. Kolko
`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
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`Counsel for Plaintiff ALMONDNET, INC.
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`Case 6:21-cv-00898-ADA Document 201 Filed 09/21/23 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`Pursuant to the Federal Rules of Civil Procedure and Local Rule CV-5, I hereby certify
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`that, on September 15, 2023, all counsel of record who have appeared in this case are being served
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`with a copy of the foregoing via electronic mail.
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`/s/ Reza Mirzaie
` Reza Mirzaie
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