Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 1 of 15
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`ANCORA TECHNOLOGIES, INC.,
`
`Plaintiff,
`
`CIVIL ACTION NO. 1:20-CV-00034-ADA
`
`v.
`
`LG ELECTRONICS INC. and LG
`ELECTRONICS U.S.A., INC.,
`
`Defendants.
`
`ANCORA TECHNOLOGIES, INC.,
`
`JURY TRIAL DEMANDED
`
`Plaintiff,
`
`CIVIL ACTION NO. 1:20-CV-00034-ADA
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.,
`and SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
`
`JURY TRIAL DEMANDED
`
`DEFENDANT LG ELECTRONICS INC. AND LG ELECTRONICS U.S.A., INC.’S
`DAUBERT MOTION TO EXCLUDE AND STRIKE
`CERTAIN OPINIONS OFFERED BY DR. DAVID MARTIN
`
`PUBLIC VERSION
`
`

`

`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 2 of 15
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`INTRODUCTION ............................................................................................................. 1
`
`LEGAL STANDARDS ..................................................................................................... 1
`
`ARGUMENT ..................................................................................................................... 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`Dr. Martin’s opinions that Samsung’s E-FOTA are “identical or near
`identical” to LGE’s OTA Update are unsupported and unreliable. ....................... 1
`
`Dr. Martin’s opinions relating to LGE’s alleged direction or control of
`third parties must be excluded because they are not sufficiently reliable. ............. 3
`
`1.
`
`2.
`
`3.
`
`4.
`
`Dr. Martin does not analyze LGE’s alleged direction or control of
` ............................................ 4
`
`Dr. Martin does not analyze LGE’s alleged direction or control of
` ........................................ 5
`
`Dr. Martin does not analyze alleged direction or control of end
`users. .......................................................................................................... 7
`
`Dr. Martin does not have any industry experience and is not
`qualified to opine on direction or control. ................................................. 7
`
`Dr. Martin’s opinions relating to the “agent” limitation should be
`excluded. ................................................................................................................ 8
`
`Dr. Martin should be precluded from testifying about X509 certificates. ............. 9
`
`IV.
`
`CONCLUSION ................................................................................................................ 10
`
`i
`
`

`

`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 3 of 15
`TABLE OF AUTHORITIES
`
`CASES
`
`PAGE(S)
`
`Amazon.com, Inc. v. Barnesandnoble.com, Inc.,
`239 F.3d 1343 (2001) .................................................................................................................8
`
`Daubert v. Merrell Dow Pharm., Inc.,
`509 U.S. 579 (1993) ...............................................................................................................1, 9
`
`Grecia v. VUDU, Inc.,
`No. C-14-1220-EMC, 2015 WL 538486 (N.D. Cal. Feb. 9, 2015) .......................................4, 6
`
`Johnson v. Arkema, Inc.,
`685 F.3d 452 (5th Cir. 2012) .....................................................................................................7
`
`Supply & Bldg. Co. v. Estee Lauder Int’l.,
`No. 95 CIV. 8136(RCC), 2001 WL 1602976 (W.D.N.Y. Dec. 14, 2001) ................................8
`
`RULES
`
`Fed. R. Evid. 702 .....................................................................................................................1, 2, 8
`
`ii
`
`

`

`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 4 of 15
`
`I.
`
`INTRODUCTION
`
`Defendants LG Electronics Inc. and LG Electronics U.S.A., Inc. (collectively, “LGE”)
`
`move to exclude certain unreliable opinions offered by Ancora Technologies, Inc.’s expert, Dr.
`
`David Martin. Dr. Martin’s opinions that Samsung’s E-FOTA is “identical or near identical” to
`
` functionality are speculative and unsupported. Further, Dr.
`
`Martin is unqualified to opine on whether LGE directs or controls relevant third parties, and he
`
`provides no factual or legal basis for his opinions. Dr. Martin does not apply the Court’s
`
`construction for the “agent” limitation in his Rebuttal Report, and he applies different
`
`constructions for this term in his affirmative and rebuttal reports. Lastly, Dr. Martin mentions the
`
`X509 standard in passing, but does not rely on it in any proffered opinion.
`
`II.
`
`LEGAL STANDARDS
`
`“Expert evidence can be both powerful and quite misleading because of the difficulty in
`
`evaluating it.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993). Rule 702 thus
`
`bars expert testimony unless: (1) “the testimony is based on sufficient facts or data;” (2) “the
`
`testimony is the product of reliable principles and methods;” and (3) “the expert has reliably
`
`applied the principles and methods to the facts of the case.” FED. R. EVID. 702.
`
`III.
`
`ARGUMENT
`
`A.
`
`Dr. Martin’s opinions that Samsung’s E-FOTA are “
` are unsupported and unreliable.
`
`Dr. Martin opines in his report that Samsung’s E-FOTA solution is “
`
`
`
` Ex. A, ¶ 82 (“Martin Main Rpt.”).
`
`However, his opinion is not based on any source code or reliable technical documents describing
`
`how Samsung’s E-FOTA operates. Instead, he cites various high-level, public websites that
`
`provide only overviews with roughly the same few paragraphs describing, only generally, how
`
`1
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`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 5 of 15
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`Samsung’s E-FOTA works. Id., ¶ 82, n.20. Notably absent is any meaningful analysis based on
`
`technical documents supporting his conclusion that
`
`
`
`e.” Id., ¶ 83 (emphasis added).1
`
`Dr. Martin further concludes that Samsung’s Enterprise Mobile Management (“EMM”)
`
`solutions uses a FOTA Client that “
`
`
`
`. Id., ¶ 84 (emphasis added). He vaguely states that “the documentation suggests
`
`[Samsung’s E-FOTA] may have included additional settings to permit [] a silent update” and
`
`“[e]ven if the [] E-FOTA solution is slightly different than LG’s
`
`
`
`” Id. (emphasis added). He
`
`fails to describe what “
`
` is or how “
`
` would infringe
`
`” The only ostensible support for any of his conclusions are
`
`
`
`
`
`.” Id.
`
`Finally, Dr. Martin makes a passing statement that Samsung’s E-FOTA product includes
`
`an “EMM Console” that “appears to primarily offer businesses the ability to control the timing of
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`(and whether to update) Samsung-issued and Samsung-developed software for Samsung
`
`devices.” Id., ¶ 85 (emphasis added). There is no connection or comparison to the accused LGE
`
`devices or the accused OTA Update process. Based on the above deficiencies, Dr. Martin’s
`
`conclusions are fatally flawed because they lack any analysis or support for his opinions.
`
`1 For reasons stated more fully in LGE’s motion to exclude and strike certain opinions by Mr.
`Robert Mills, LGE also seeks to have Dr. Martin’s opinion regarding Samsung’s E-FOTA
`functionality excluded because information regarding E-FOTA was not disclosed to LGE during
`fact discovery.
`
`2
`
`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 6 of 15
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`B.
`
`Dr. Martin’s opinions relating to LGE’s alleged direction or control of third
`parties must be excluded because they are not sufficiently reliable.
`
`Dr. Martin repeatedly makes factually and legally unsupported statements that LGE directs
`
`or controls various third parties in the over-the-air (OTA) update process rendering LGE liable for
`
`direct infringement. Indeed, for each claim limitation, Dr. Martin recycles his mantra that “LG’s
`
`employees, agents, and/or customers who operate at LG’s direction and control” perform the
`
`limitation. See, e.g., Ex. B, ¶¶ 44, 51, 64, 118, 141, 153, 158, 170, 182, 185, 187 (“Martin Phone
`
`App’x.”); Ex. C, ¶¶ 19, 27, 32, 46, 52, 63, 67, 71, 73 (“Martin TV App’x.”). Despite these repeated
`
`assertions of direction and control, he fails to provide any factual or legal basis for his opinions.
`
`By way of background, the accused LGE mobile devices (i.e., phones and tablets) and
`
`televisions can receive firmware or software updates through an over-the-air (“OTA”) update
`
`process. Relevant to the present discussion are the third party distribution channels that transmit
`
`OTA updates to end-user devices. There are two primary channels for distribution: (1) updates
`
`distributed to mobile devices by
`
`
`
` (Ex. D, ¶ 64 (“Barber
`
`Rebuttal Report.”)); and (2) updates distributed to mobile devices and TVs by
`
`. Two key similarities exist in this analysis: (1) C
`
`
`
`
`
`third parties who then
`
`
`
`(Id., ¶¶ 64, 68, 70–71); and (2)
`
` That is, LGE provides the update package to
`
`
`
`Dr. Martin provides no analysis regarding the roles of these independent third parties and
`
`their separate distribution channels. He glosses over the role of
`
` that
`
`
`
`, and he completely overlooks the role of end-users in the
`
`3
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`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 7 of 15
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`process. Further, Dr. Martin contradicts his own conclusion of “direction and control” by
`
`confirming that the
`
`. Ex. A, ¶ 79 (“[
`
`”
`
`
`
`
`
`.”) (emphasis added).
`
`1.
`
`Dr. Martin does not analyze LGE’s alleged direction or control of
`.
`
`As discussed above, one distribution channel for OTA updates involves
`
`
`
`entities
`
`conclusion that
`
`. Dr. Martin provides no factual support or explanation for his
`
`. These
`
`
`
`. Rather, Dr. Martin assumes without evidence that
`
`
`
`
`
`.” Ex. B, ¶ 27.
`
`There is no analysis under any guidance offered by Akamai related to the telecommunications
`
`industry (including
`
`
`
`a determination that
`
`conclusion that LGE controls
`
`
`
` or any facts that would support
`
`
`
`. There is no basis to support his
`
` “[T]he mere
`
`existence of a contractual relationship is not enough” in order to establish direction or control.
`
`Grecia v. VUDU, Inc., No. C-14-1220-EMC, 2015 WL 538486, at *4 (N.D. Cal. Feb. 9, 2015).
`
`Further, during his deposition, Dr. Martin confirmed that he did not analyze all of the
`
`various third parties and their roles, and he did not even review
`
`
`
`4
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`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 8 of 15
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` Ex. E, 108:17–19 (“Martin Depo. Tr.”)
`
`
`
`.”). As noted above, his report did not include
`
`any “direction or control” analysis for
`
`.
`
`With respect
`
`
`
`, Dr. Martin has rendered an opinions without
`
`understanding the factual basis for those opinions, and without even analyzing the relationships of
`
`the very parties he assumes LGE directs and controls.
`
`2.
`
`Dr. Martin does not analyze LGE’s alleged direction or control of
`
`
`
`
`Dr. Martin wrongfully concludes that
`
` operated at LGE’s direction and control.
`
`As evidenced by the numerous hearings and the separate Hague requests to
`
`
`
` A simple internet search
`
`illustrates the corporate separateness of the entities that operate under the Korean holding company
`
`LG Corp.2 Dr. Martin understands that
`
`. Ex. A, ¶ 88 (“I understand
`
`that, according to LG’s corporate representatives,
`
`
`
`”). Despite this, both he and Ancora
`
`inject a false narrative that any entity with “
`
` is directly affiliated with LGE or is
`
`an “alter ego” of LGE. Id., ¶ 88 (“
`
`)”).
`
`Based on this incorrect assumption, Dr. Martin fails to provide any analysis of LGE’s relationship
`
`with
`
` or any facts that would support his opinion that LGE controls
`
`insinuating a contract with
`
`. Ex. A, ¶ 98. However, LGE
`
`. He does imply that
`
`
`
`,
`
`
`
`2 See, e.g., a web archive snapshot of LG Corp’s corporate structure
`in 2017:
`https://web.archive.org/web/20170425225323/http://www.lgcorp.com/about/affiliatesList.dev.
`
`5
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`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 9 of 15
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`. Ex. F at 83 (No. 17) (“LGE’s 3rd Supplemental
`
`Objections and Responses to Plaintiff’s First Set of Interrogatories”).
`
`Lastly, Dr. Martin opines that every OTA update in the United States comes by way of
`
`. This opinion incorrectly injects
`
`(and by false narrative, LGE) into the
`
`
`
`
`
`. Moreover, this opinion is
`
`founded on a fundamentally incorrect misstatement of LGE’s interrogatory responses. Ex. A, ¶ 90.
`
`Specifically, Ancora asked (generally) how
`
` Ex. F at 84 (No. 18). In response,
`
`LGE continued its response stating,
`
`
`
`
`
`. Id. at 85.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`. Id. Dr. Martin’s opinion that
`
` is unreliable because it is based on an obvious misquotation:
`
`Dr. Martin’s Opinion (emphasis added) LGE Actual Response (emphasis added)
`
`
`
`
`
`
`
`
`Lastly, Dr. Martin attempts to shoehorn all
`
`.
`
`, into the same bucket without any analysis. He does so by way of a
`
`Supplemental Report based on deposition of
`
`pursuant to a third party subpoena. Dr.
`
`Martin concludes that
`
`G, ¶ 6 (“Martin Supp. Report”). However, there is no analysis, or even
`
`.” Ex.
`
`,
`
`indicating how any
`
`. Lastly, to the extent
`
`6
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`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 10 of 15
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`that Dr. Martin seeks to opine that LGE directs or controls
`
`, any such testimony at trial
`
`is improper because his Supplemental Report makes no such conclusion, and, further, there is no
`
`evidence analyzed that
`
`.
`
`3.
`
`Dr. Martin does not analyze alleged direction or control of end users.
`
`There are no facts or analysis in Dr. Martin’s report to support an opinion that LGE directs
`
`or controls end users. LGE (repeatedly) confirms that end users of LGE’s accused products are
`
`.” Ex. F at 11, 13–14, 20. In his deposition, Dr. Martin
`
`admits that his report includes an opinion that LGE directs or controls end users. Ex. E at 68:13–
`
`22 (stating that
`
`”).
`
`However, his report is devoid of any analysis of how LGE actually controls end users.
`
`4.
`
`Dr. Martin does not have any industry experience and is not qualified to
`opine on direction or control.
`
`Dr. Martin has no experience
`
`that would qualify him as an expert
`
`in
`
`the
`
`telecommunications industry sufficient to opine on the interactions and responsibilities of the
`
`various entities distributing OTA updates. Ex. A, ¶¶ 5–10; Ex. H (“Martin CV”). Further, while
`
`Dr. Martin refers to Akamai for his understanding of various tests on direction and control (Ex. A,
`
`¶ 21), his conclusions do not refer or apply any test offered in Akamai supporting a conclusion that
`
`LGE directs or controls the multitude of independent third parties. Ex. B, ¶¶ 44, 51, 64, 118, 141,
`
`158, 170, 182, 185, 187; Ex. C, ¶¶ 19, 27, 32, 46, 52, 63, 67, 71, 73. Given his lack of experience
`
`in the relevant industry, failure to provide any analysis, and given the evidence contradicting his
`
`own opinions, this Court should exclude Dr. Martin’s opinions on direction and control and not
`
`permit him to testify on this issue at trial. Johnson v. Arkema, Inc., 685 F.3d 452, 458–59 (5th Cir.
`
`2012) (Courts must “determine whether a body of evidence relied upon by an expert is sufficient
`
`7
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`

`

`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 11 of 15
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`to support that expert’s opinion”). Lastly, because Dr. Martin confirms that “joint enterprise” is
`
`not a consideration in this case (Id., ¶ 21), any such testimony should be excluded at trial.
`
`Lastly, Dr. Martin admits that he effectively assumed LGE controlled any “agents, and/or
`
`customers” who perform the asserted claim limitations. Ex. E at 90:15–20, 108:17–19, 105:15–
`
`24. Such conclusory statements are not proper expert testimony and should be excluded. Supply
`
`& Bldg. Co. v. Estee Lauder Int’l., No. 95 CIV. 8136(RCC), 2001 WL 1602976, at *4 (W.D.N.Y.
`
`Dec. 14, 2001) (expert opinion excluded where it relies upon “[a]ssumptions based on conclusory
`
`statements of the expert’s client, rather than on the expert’s independent evaluation”).
`
`C.
`
`Dr. Martin’s opinions relating to the “agent” limitation should be excluded.
`
`The Court construed “agent” to mean “a software program or routine.” Dkt. No. 93 at 36.
`
`The Court did not require that the agent have an “OS-level” component. Indeed, in the
`
`Supplemental Claim Construction Order, the Court confirmed this: “The agent may operate at the
`
`OS-level.” Id. at 26 (emphasis added) (internal citations omitted). To be clear, the Court adopted
`
`Ancora’s proposed construction for the term “agent” that did not require an OS-level element.
`
`Dkt. No. 93 at 28, 36; see also Dkt. No. 47 at 17. Despite this, Dr. Martin takes a contradictory
`
`opinion in his Rebuttal Report, repeatedly stating that the “agent” limitation must be limited to
`
`OS-level agents. Ex. I, ¶¶ 99, 106–108, 113, 151, 153–56, 187, 198, 269, 276 (“Martin Rebuttal
`
`Report”). Failing to apply this Court’s construction for “agent” in his Rebuttal Report, Dr. Martin
`
`circumvents his obligation to apply “principles and methods . . . reliably to the facts of the case,”
`
`(FED. R. EVID. 702) and his opinion should thus be excluded. See also Chicago Mercantile, 782
`
`F. Supp. 2d at 673 (“[E]vidence based upon a mistaken construction of a patent is irrelevant.”).
`
`In addition to his failure to apply the Court’s construction of “agent” in his Rebuttal Report,
`
`Dr. Martin’s opinion on the “agent” limitation should still be excluded because he does not apply
`
`the same construction to his infringement report. Amazon.com, Inc. v. Barnesandnoble.com, Inc.,
`
`8
`
`

`

`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 12 of 15
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`239 F.3d 1343, 1351 (2001) (“[C]laims must be interpreted and given the same meaning for
`
`purposes of both validity and infringement analyses.”). In particular, Dr. Martin provides what he
`
`calls a “bootloader” analysis. Ex. B, ¶¶ 20–22 (asserting two separate infringement theories for
`
`mobile devices, the “installer” analysis and the “bootloader” analysis). For the “agent” limitation
`
`in this bootloader scenario,
`
`. Ex. E at 216:13–17 (“
`
`
`
`
`
`
`
`
`
`(
`
`that operate
`
` Ex. D, ¶ 93; Ex. B at 9 (citing LGE_ANCORA00256237-trans)
`
` That is, the functions and source code identified by Dr. Martin
`
`
`
`.
`
`In his deposition, Dr. Martin dances around this issue arguing for an obscure interpretation
`
`of the “entire term” that is absent from his infringement report. Ex. E at 201:11–202:1.
`
`Nevertheless, whether the term “agent” is viewed alone, or the entire limitation “using an
`
`agent . . .” is considered, the same understanding must still be applied consistently across his
`
`reports. This erroneous and inconsistent approach is not reliable and therefore in contravention of
`
`the rules of evidence and Daubert. 509 U.S. at 595–97. The fact finder could easily be misled, to
`
`LGE’s prejudice, by relying on opinions from Ancora’s proffered expert that apply different
`
`constructions to the same terms when he is opining on infringement and invalidity.
`
`D.
`
`Dr. Martin should be precluded from testifying about X509 certificates.
`
`In passing, Dr. Martin mentions something called X509 certificates. Ex. A, ¶¶ 68–69.
`
`However, Dr. Martin never again mentions, much less applies or provides an opinion on, X509
`
`certificates in his infringement analysis. Further, Ancora never identified such certificates in their
`
`9
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`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 13 of 15
`
`infringement contentions. Ex. J (“Plaintiff’s Final Infringement Contentions”). Accordingly, Dr.
`
`Martin should be prohibited from offering testimony regarding X509 certificates at trial.
`
`IV.
`
`CONCLUSION
`
`Dr. Martin’s opinions on Samsung’s E-FOTA, LGE’s purported direction and control of
`
`third parties, the “agent” term, and X509 are unreliable, and should be excluded at trial.
`
`10
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`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 14 of 15
`
`Date: March 31, 2021
`
`Respectfully submitted,
`
`/s/ Elizabeth M. Chiaviello
`
`Winstol D. Carter, Jr.
`Texas Bar No. 03932950
`winn.carter@morganlewis.com
`Thomas R. Davis
`Texas Bar No. 24055384
`thomas.davis@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`1000 Louisiana Street, Suite 4000
`Houston, Texas 77002-5006
`T. 713.890.5000
`F. 713.890.5001
`
`Collin W. Park
`collin.park@morganlewis.com
`District of Columbia Bar No. 470486
`Natalie A. Bennett
`natalie.bennett@morganlewis.com
`Illinois Bar No. 6304611
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Avenue, NW
`Washington, D.C. 20004-2541
`T. 202.739.3000
`F. 202.739.3001
`
`Elizabeth M. Chiaviello
`Texas Bar No. 24088913
`elizabeth.chiaviello@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`1717 Main Street, Suite 3200
`Dallas, Texas 75201-7347
`T. 214.466.4000
`F. 214.466.4001
`
`Attorneys for Defendants LG Electronics
`Inc. and LG Electronics U.S.A., Inc.
`
`11
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`

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`Case 1:20-cv-00034-ADA Document 209 Filed 04/08/21 Page 15 of 15
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`CERTIFICATE OF SERVICE
`The undersigned certifies that a true and correct copy of the foregoing document was served
`via the Court’s CM/ECF system on all counsel of record who have appeared in this case via
`electronic mail per Local Rule CV-5.
`
`/s/ Elizabeth M. Chiaviello
`Elizabeth Chiaviello
`
`12
`
`