Case 6:21-cv-00926-ADA Document 391 Filed 09/13/21 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`FINTIV, INC.,
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`Plaintiff,
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`v.
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`APPLE INC.,
`
`Defendant.
`
`Civil Action No. 1:19-cv-01238-ADA
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`DEFENDANT APPLE’S OPPOSITION TO PLAINTIFF FINTIV’S
`MOTION IN LIMINE NO. 3
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`TABLE OF CONTENTS
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`Page
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`B.
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`C.
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`D.
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`INTRODUCTION ...............................................................................................................1
`ARGUMENT .......................................................................................................................1
`A.
`Fintiv Motion in Limine 3.A: Apple Is Entitled to Compare the Accused
`Products to the Prior Art, Especially For Apportionment Purposes. .......................1
`Fintiv Motion in Limine 3.B: Apple Is Entitled to Refer to “Third-Party
`Patents” in Rebutting Fintiv’s Liability and Damages Cases. .................................2
`Fintiv Motion in Limine 3.C: Apple’s Reliance on Documents Describing the
`VivoTech Prior Art System Is Proper. .....................................................................3
`Fintiv Motion in Limine 3.D: “Non-Elected” Prior Art Is Relevant And
`Admissible to Show the State of the Art, Among Other Things. ............................4
`Fintiv Motion in Limine 3.E: Neither Party Should Refer to Dropped Claims
`or Defenses...............................................................................................................5
`Fintiv Motion in Limine 3.F: Apple’s Patents Are Relevant to Damages
`Apportionment, Among Other Things. ....................................................................6
`Fintiv Motion in Limine 3.G: Apple Correctly Applied the Court’s Claim
`Constructions, So There Is Nothing to Exclude. ......................................................7
`Fintiv Motion in Limine 3.H: Apple Does Not Intend to Elicit “Infringement
`Opinions” From Lay Witnesses. ..............................................................................9
`Fintiv Motion in Limine 3.I: Evidence that Individual Claim Elements Were
`in the Prior Art Is Relevant and Admissible. ...........................................................9
`Fintiv Motion in Limine 3.J: Apple Has No “New Noninfringement And
`Invalidity Opinions,” So There Is Nothing to Exclude. .........................................10
`CONCLUSION ..................................................................................................................10
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`E.
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`F.
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`G.
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`H.
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`I.
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`J.
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`I.
`II.
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`III.
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Allergan, Inc. v. Teva Pharms.,
`2:15-cv-1455, Dkt. No. 395 (E.D. Tex. Aug 3, 2017) ...............................................................5
`
`Cellular Communs. Equip. LLC v. Apple Inc.,
`No. 6:14-cv-251-KNM, 2016 WL 11496010 (E.D. Tex. Sep. 2, 2016) ................................2, 9
`
`In re Epstein,
`32 F.3d 1559 (Fed. Cir. 1994)....................................................................................................3
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`Lee v. United States,
`No. SA-08-CA-531-OG, 2010 WL 11452182 (W.D. Tex. Feb. 8, 2010) ....................... passim
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`Maxell, Ltd. v. Apple Inc.,
`No. 5:19-CV-00036-RWS, 2021 WL 3021253 (E.D. Tex. Feb. 26, 2021) ...............................5
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`Mobility Workx, LLC v. Cellco P’ship,
`No. 4:17-CV-00872, 2019 WL 5721814 (E.D. Tex. Nov. 5, 2019) ..........................................5
`
`Payne v. Schneider Nat’l Carriers, Inc.,
`No. 09-559-GPM, 2011 WL 13098000 (S.D. Ill. Apr. 26, 2011) ................................... passim
`
`Rembrandt Wireless Techs., LP v. Samsung Elecs. Co.,
`No. 2:13-CV-213-JRG-RSP, 2015 WL 627430 (E.D. Tex. Jan. 31, 2015) ...........................2, 9
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`Retractable Techs. Inc. v. Becton, Dickinson & Co.,
`No. 2:07-CV-250, 2009 WL 8725107 (E.D. Tex. Oct. 8, 2009) ...............................................3
`
`Showan v. Pressdee,
`No. 1:16-CV-468-0DE, 2017 WL 9400750 (N.D. Ga. Nov. 3, 2017), aff’d, 922 F.3d 1211
`(11th Cir. 2019) ................................................................................................................ passim
`
`ZiiLabs Inc., Ltd. v. Samsung Elecs. Co.,
`No. 2:14-cv-203-JRG-RSP, 2015 WL 13617214 (E.D. Tex. Oct. 28, 2015) ............................6
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`Ziilabs Inc., Ltd. v. Samsung Elecs. Co.,
`No. 2:14-CV-203-JRG-RSP, 2015 WL 7303352 (E.D. Tex. Aug. 25, 2015) .......................5, 9
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`STATUTES
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`35 U.S.C. § 282 ................................................................................................................................5
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`TABLE OF AUTHORITIES (Cont.)
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`Page(s)
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`OTHER AUTHORITIES
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`Fed. R. Civ. P. 26(a)(2)(C) ..............................................................................................................9
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`I.
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`INTRODUCTION
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`Fintiv’s ten-part motion in limine No. 3 seeks to exclude disparate categories of evidence
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`and argument, which Fintiv addresses in Sections A through J of its motion. As demonstrated
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`below, Fintiv’s overbroad motion is largely moot, because it seeks to exclude evidence and
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`argument Apple does not intend to present at trial, and should otherwise be denied as improperly
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`seeking to exclude relevant and admissible evidence.
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`II.
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`ARGUMENT
`A.
`Fintiv Motion in Limine 3.A: Apple Is Entitled to Compare the Accused
`Products to the Prior Art, Especially For Apportionment Purposes.
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`The Court should deny Part A of Fintiv’s this motion in limine because it is too generic to
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`grant. Fintiv does not say which prior art, which issues, or which opinions Fintiv contends
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`should be excluded. See Lee v. United States, No. SA-08-CA-531-OG, 2010 WL 11452182, at
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`*3 (W.D. Tex. Feb. 8, 2010) (denying motion in limine as too “vague” and failing to “direct the
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`Court to the specific testimony that Plaintiffs seek to exclude”); Showan v. Pressdee, No. 1:16-
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`CV-468-0DE, 2017 WL 9400750, at *3-4 (N.D. Ga. Nov. 3, 2017), aff’d, 922 F.3d 1211 (11th
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`Cir. 2019) (denying motions as “too vague to warrant a ruling in limine”); Payne v. Schneider
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`Nat’l Carriers, Inc., No. 09-559-GPM, 2011 WL 13098000, at *1 (S.D. Ill. Apr. 26, 2011)
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`(denying “extremely vague and overbroad” motion in limine). If Fintiv has a particular objection
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`at trial to Apple’s questions of its experts, the Court can rule on a specific objection at that time,
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`with the proper context of the question and answer. Fintiv’s effort to get a blanket exclusion
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`devoid of factual context, however, is improper.
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`On the substance, Apple does not intend to demonstrate noninfringement by arguing that
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`its products practice the prior art. Fintiv admits that such an argument would be “previously
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`undisclosed to Fintiv” (Mot. at 1), because Apple has not and will not make such an argument.
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`However, Apple’s witnesses are entitled to compare Apple’s products to prior art products to
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`help them explain how Apple’s products work. Apple engineers will testify about their
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`development of the accused technology, and in so doing, may compare the innovative Apple
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`technology to the products that came before. This is permissible. And comparing prior art
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`products to the accused technology is fundamental to apportionment for damages purposes. As
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`Mr. Bakewell opined, “there is a wide range of characteristics of Apple Pay that are not
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`attributable to the ’125 patent,” including Apple’s own patents on Apple Pay and mobile wallet
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`technology. Ex. A, Bakewell Report at ¶ 207; see also id. ¶¶ 104, 141-142, 193-196.
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`The cases Fintiv cites do not support the nebulous proposition of excluding “any
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`reference comparing the accused devices to any prior art.” Mot. at 1. Rather, those cases
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`prohibit relying on prior art as a noninfringement defense, while permitting a defendant to
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`“discuss the general state of the art.” Cellular Communs. Equip. LLC v. Apple Inc., No. 6:14-cv-
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`251-KNM, 2016 WL 11496010, at *1 (E.D. Tex. Sep. 2, 2016); see also Rembrandt Wireless
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`Techs., LP v. Samsung Elecs. Co., No. 2:13-CV-213-JRG-RSP, 2015 WL 627430, at *4 (E.D.
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`Tex. Jan. 31, 2015) (ruling “shall not impair Defendants’ right to present their invalidity defenses
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`based on anticipation or obviousness.”). Apple intends to discuss the state of the art in its
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`invalidity case, in describing Apple Pay, and for damages purposes. All are permitted.
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`B.
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`Fintiv Motion in Limine 3.B: Apple Is Entitled to Refer to “Third-Party
`Patents” in Rebutting Fintiv’s Liability and Damages Cases.
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`The Court should deny Part B of Fintiv’s third motion in limine because Fintiv once
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`again fails to identify any specific testimony, opinions, or exhibits—including any “third party
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`patents”—it seeks to exclude. See Lee, 2010 WL 11452182, at *3; Showan, 2017 WL 9400750,
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`at *3-4; Payne, 2011 WL 13098000, at *1. Regardless, Apple is entitled to offer evidence about
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`“third-party patents” both in rebutting Fintiv’s liability case (for invalidity purposes) and Fintiv’s
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`damages case (for apportionment purposes). See Retractable Techs. Inc. v. Becton, Dickinson &
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`Co., No. 2:07-CV-250, 2009 WL 8725107, at *7 (E.D. Tex. Oct. 8, 2009). Fintiv’s motion even
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`cites one of the Georgia Pacific factors, “the portion of the profit that should be credited to the
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`invention as distinguished from elements not related to the patents-in-suit …” (Mot. at 3,
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`emphasis added), for which evidence about elements contributed by patents other than Fintiv’s is
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`relevant and admissible.
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`C.
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`Fintiv Motion in Limine 3.C: Apple’s Reliance on Documents Describing the
`VivoTech Prior Art System Is Proper.
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`The Court should deny Part C of Fintiv’s motion because Fintiv once again fails to
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`identify any specific testimony, opinions, or exhibits it seeks to exclude. See Lee, 2010 WL
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`11452182, at *3; Showan, 2017 WL 9400750, at *3-4; Payne, 2011 WL 13098000, at *1. Fintiv
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`vaguely refers to “demonstrations, descriptions, or characterizations of software products that
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`were created or modified far too late to qualify as prior art,” but fails to identify anything in
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`particular that it seeks to exclude. If Fintiv is referring to documents describing the VivoTech
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`system that allegedly post-date certain public trials, Apple has addressed the relevance and
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`admissibility of such documents in opposing Fintiv’s motion for summary judgment. See ECF
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`No. 312 at 27-28. As Apple’s summary judgment opposition demonstrates, Apple’s expert Mr.
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`Dreifus properly relies on documents describing the VivoTech system that allegedly post-date
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`certain public trials. Id. Mr. Dreifus relies on a number of documents describing the VivoTech
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`components from 2009, more than one year prior to the ’125 patent, and Mohammad Khan, who
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`invented the VivoTech system, will explain that these documents accurately describe the
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`VivoTech system as it existed during all of the public trials identified by Mr. Dreifus. Id. The
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`Federal Circuit has held that an expert may rely on documents dated after the alleged public use
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`to describe the operation and functionality of the relevant prior art system. See In re Epstein, 32
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`F.3d 1559, 1567 (Fed. Cir. 1994). Whether the VivoTech prior art software was publicly
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`disclosed early enough to qualify as prior art, and whether it included all of the features
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`necessary to invalidate the asserted claims, are hotly disputed facts that the jury will be asked to
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`decide. Fintiv offers no basis to exclude evidence on these contested fact issues.
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`D.
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`Fintiv Motion in Limine 3.D: “Non-Elected” Prior Art Is Relevant And
`Admissible to Show the State of the Art, Among Other Things.
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`The Court should deny Part D of Fintiv’s motion because Fintiv once again fails to
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`identify any specific testimony, opinions, or exhibits it seeks to exclude. See Lee, 2010 WL
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`11452182, at *3; Showan, 2017 WL 9400750, at *3-4; Payne, 2011 WL 13098000, at *1. Fintiv
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`vaguely refers to “non-elected prior art or prior art that has not been explicitly identified in
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`Apple’s final invalidity contentions,” but does not identify any such “non-elected prior art” nor
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`any particular expert opinion it seeks to exclude. Regardless, Apple does not intend to argue
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`invalidity based on prior art not disclosed in its invalidity contentions. But as demonstrated
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`above, “non-elected” prior art is relevant and admissible to show the state of the art, to provide
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`background of the accused technology, to show the level of skill in the art, and for apportionment
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`purposes. Apple’s experts Ahmer Khan and Henry Dreifus both disclosed that they may provide
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`a tutorial on the technology relevant to the ’125 patent, including “basic aspects of mobile
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`devices and applications, client/server architectures and communications, contactless payment
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`technologies, mobile wallets, and the mobile payments industry including industry standards and
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`participants,” Ex. B, Dreifus Report ¶ 82; see also Ex. C, Khan Decl. at ¶ 10.
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`Fintiv cites no decision from this District to support its motion to exclude non-elected
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`prior art, citing only three decisions from the Eastern District of Texas. But courts in the Eastern
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`District routinely admit state of the art evidence, finding that their Local Patent Rules do “not
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`expressly, or by implication, require the production of all evidence that may be relevant in any
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`way to the issue of obviousness, such as background evidence going to the state of the art at the
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`time of the invention.” Mobility Workx, LLC v. Cellco P’ship, No. 4:17-CV-00872, 2019 WL
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`5721814, at *20 (E.D. Tex. Nov. 5, 2019); see also Ziilabs Inc., Ltd. v. Samsung Elecs. Co., No.
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`2:14-CV-203-JRG-RSP, 2015 WL 7303352, at *2 (E.D. Tex. Aug. 25, 2015) (admitting prior art
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`to show “(1) background material relevant to the technology at issue; (2) state of the art; and (3)
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`establishing what one of skill in the art would have known at the time of the invention.”).
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`Federal Circuit Judge Bryson likewise concluded that “courts in the Eastern District have
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`permitted defendants to rely on references that were not included in their invalidity contentions
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`when the references were not proposed as invalidating prior art, but were directed to other
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`purposes, such as showing the state of the art at the time of the invention.” Maxell, Ltd. v. Apple
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`Inc., No. 5:19-CV-00036-RWS, 2021 WL 3021253, at *5 (E.D. Tex. Feb. 26, 2021) (citing
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`Allergan, Inc. v. Teva Pharms., 2:15-cv-1455, Dkt. No. 395 at *5 (E.D. Tex. Aug 3, 2017)).
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`Fintiv ignores these decisions and cites no contrary authority from this District.
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`Furthermore, Apple will continue to follow the applicable rules for disclosing prior art.
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`Apple’s notice under 35 U.S.C. § 282 is due on September 3, 2021 (30 days before the currently
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`scheduled trial), where Apple will list all prior art it intends to rely upon to show the state of the
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`art, among other things. If Fintiv takes issue with any prior art references on Apple’s § 282
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`notice, the parties can meet and confer about those references and seek the Court’s guidance if
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`necessary. But this motion in limine is both unnecessary and unsupported.
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`E.
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`Fintiv Motion in Limine 3.E: Neither Party Should Refer to Dropped Claims
`or Defenses.
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`Apple does not oppose Part E of Fintiv’s motion, which seeks to exclude “any reference
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`to claims narrowed prior to trial” (Mot. at 4), provided that such exclusion applies to both
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`parties. Neither party should refer to infringement theories that have been dropped,
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`noninfringement theories that have been dropped, or prior art references that have been dropped.
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`F.
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`Fintiv Motion in Limine 3.F: Apple’s Patents Are Relevant to Damages
`Apportionment, Among Other Things.
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`The Court should reject Fintiv’s effort to exclude evidence of Apple’s patents covering
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`Apple Pay, Apple Wallet, and the accused card provisioning process. Fintiv claims, without
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`support, that “Apple has failed to establish that its patents bear some relation to the accused
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`products.” Mot. at 6. On the contrary, Mr. Dreifus’ report includes a section analyzing 15 Apple
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`patents, in which he concludes that each of those 15 patents “generally relate to aspects of the
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`Apple Pay and mobile wallet technology” and “describe and include aspects, methods and
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`frameworks to provide the Apple Pay and mobile wallet contactless payment capabilities.”
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`Ex. D, Dreifus Reb. Report ¶ 9. No Fintiv expert rebuts Mr. Dreifus’ conclusions, so the basis of
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`Fintiv’s motion is erroneous.
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`Evidence of Apple’s patents on Apple Pay and mobile wallet technology is relevant to
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`apportionment, among other things. As Mr. Bakewell opines, “[t]here are a host of factors
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`unrelated to the claims of the ’125 patent that contribute to the popularity of Apple Pay and
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`demand for the accused products.” Ex. A, Bakewell Report ¶ 205. Relying on Mr. Dreifus’
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`analysis, Mr. Bakewell properly opines that “Apple has several patents that relate to various
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`aspects of Apple Pay and/or mobile wallet technology” that must be considered in conducting a
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`legally proper apportionment. Id. at ¶ 208. This is why courts in this District and elsewhere
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`routinely admit evidence of the defendant’s own patents related to the accused technology. See
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`Ex. E, Freshub Final Jury Instructions, Case No. 21-cv-511, ECF No. 247 at Instruction 2.13
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`(“[Y]ou may consider Amazon’s patents for other purposes, such as damages, should you reach
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`that issue.”); ZiiLabs Inc., Ltd. v. Samsung Elecs. Co., No. 2:14-cv-203-JRG-RSP, 2015 WL
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`13617214, at *1 (E.D. Tex. Oct. 28, 2015) (“This order does not preclude Samsung from using
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`these patents or patent applications as evidence to show, for example, that Samsung did not copy
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`the claimed inventions or to show that their damages theories are proper.”). Thus, evidence of
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`Apple’s patents on Apply Pay and mobile wallet technology should be admitted at trial.
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`G.
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`Fintiv Motion in Limine 3.G: Apple Correctly Applied the Court’s Claim
`Constructions, So There Is Nothing to Exclude.
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`Contrary to Part G of Fintiv’s motion, Apple has not and will not deviate from the
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`Court’s construction of “wallet management applet,” “contactless,” “OTA proxy,” or “mobile
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`device” (Mot. at 6-7), so there is nothing to exclude. As demonstrated in Apple’s oppositions to
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`Fintiv’s motions to exclude portions of Mr. Dreifus’ and Mr. Khan’s expert disclosures, both
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`gentlemen apply the Court’s claim constructions as written. See ECF No. 302 at 1-8, ECF No.
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`303 at 4-6. In fact, the only expert who ignores the Court’s constructions of “contactless” and
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`“mobile device” is Fintiv’s expert, Dr. Shamos. See ECF No. 270 at 20-22, 24-26.
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`Mr. Dreifus correctly applies the construction of “wallet management applet (WMA),”
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`which the Court construed to mean “software that enables management of an electronic wallet
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`including, but not limited to, the functionality of storing account specific information.” ECF No.
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`86 at 34. Mr. Dreifus recites the construction verbatim, including the functionality of “storing
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`account specific information,” and finds it missing from the accused products. Ex. D, Dreifus
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`Reb. Report ¶¶ 18, 205-235. Mr. Dreifus also correctly applies the construction of “contactless
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`card applet,” which the Court construed to have its plain and ordinary meaning of
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`“communication with a device where the communication does not require physical contact.”
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`Ex. F, 8/28/20 Hearing Tr. at 37:22-38:2. At that hearing, the Court clarified that its construction
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`does not equate “contactless” with “wireless,” saying: “I don’t think my construction of
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`contactless does open it up to the unlimited field of wireless. I disagree with that. I mean, I
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`think one skilled in the art would not think that for this invention.” Id. at 23:10-17. With this
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`clarification, Mr. Dreifus correctly applies the construction to conclude that iPad and Mac do not
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`meet the “contactless” limitation because they only perform wireless transactions. Ex. D,
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`Dreifus Reb. Report ¶¶ 18, 249-270; see also ECF No. 270 at 20-24. Mr. Dreifus also correctly
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`applies the construction of “over-the-air (OTA) proxy,” which is “software, in conjunction with
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`relevant hardware, that provisions contactless card applets, captures mobile device information
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`(including SE information), transmits data (mobile device and SE specific information) to the
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`TSM system, and receives APDU commands from the TSM and appropriately forwards them.”
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`ECF No. 86 at 34. Mr. Dreifus opines that none of Dr. Shamos’ four infringement theories
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`satisfies the “OTA proxy” limitation. Ex. D, Dreifus Reb. Report ¶¶ 418-451. Finally, Mr.
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`Dreifus correctly applies the construction of “mobile device” to conclude that an iPhone-Watch
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`pair does not meet the “mobile device” limitation, which the Court construed to mean “a single
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`mobile device that may comprise multiple connected components.” Ex. F, 8/28/20 Hearing Tr.
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`at 41:20-42:1; see also Ex. G, 10/21/20 Hearing Tr. at 39:13-40:13; ECF No. 270 at 24-26.
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`For his part, Mr. Khan confirms that he read, understood, and followed the Court’s claim
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`constructions. See Ex. C, Khan Decl. ¶¶ 18-19. Like Mr. Dreifus, Mr. Khan concludes the
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`accused products do not have a “wallet management applet” because they do not store “account
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`specific information.” Id. at ¶ 19. He explains
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` Id. Mr. Khan also
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`correctly applies the construction of “contactless” to conclude that iPad and Mac do not and
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`cannot perform “contactless” transactions. Id. at ¶ 30-35. Thus, both of Apple’s technical
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`experts faithfully apply the Court’s constructions, so there is nothing to exclude.
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`H.
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`Fintiv Motion in Limine 3.H: Apple Does Not Intend to Elicit “Infringement
`Opinions” From Lay Witnesses.
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`In Part H of its motion, Fintiv again fails to identify any specific testimony, opinions, or
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`exhibits that it seeks to exclude, so the Court should deny this portion of Fintiv’s motion. See
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`Lee, 2010 WL 11452182, at *3; Showan, 2017 WL 9400750, at *3-4; Payne, 2011 WL
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`13098000, at *1. But regardless, Apple does not intend to elicit “infringement opinions” from
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`any lay witnesses. Apple will elicit noninfringement opinions from its disclosed experts Henry
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`Dreifus and Ahmer Khan, the latter of whom Apple properly disclosed as a hybrid fact/expert
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`witness under Fed. R. Civ. P. 26(a)(2)(C). Fintiv does not argue that either witness was
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`improperly disclosed, so its motion is moot.
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`I.
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`Fintiv Motion in Limine 3.I: Evidence that Individual Claim Elements Were
`in the Prior Art Is Relevant and Admissible.
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`Part I of Fintiv’s motion again fails to identify any specific testimony or exhibit that
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`Fintiv seeks to preclude, fails to identify any objectionable evidence, and cites no purportedly
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`objectionable expert opinion. The Court should deny the motion on this basis alone. See Lee,
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`2010 WL 11452182, at *3; Showan, 2017 WL 9400750, at *3-4; Payne, 2011 WL 13098000, at
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`*1. Regardless, the fact that “individual claim elements were in the prior art” (Mot. at 8) is
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`relevant and admissible. For damages purposes, Apple is entitled to offer evidence that the ’125
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`patent is not novel generally and adds little, if any, value over what already existed in the prior
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`art. See Bakewell Reb. Report ¶¶ 104, 141-142, 193-196. See Ziilabs Inc., Ltd. v. Samsung
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`Elecs. Co., No. 2:14-CV-203-JRG-RSP, 2015 WL 7303352, at *2. Individual claim elements
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`from the prior art also are relevant to an invalidity analysis. See Cellular Communs. Equip. LLC
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`v. Apple Inc., No. 6:14-cv-251-KNM, 2016 WL 11496010, at *1 (E.D. Tex. Sep. 2, 2016); see
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`also Rembrandt Wireless Techs., LP v. Samsung Elecs. Co., No. 2:13-CV-213-JRG-RSP, 2015
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`WL 627430, at *4 (E.D. Tex. Jan. 31, 2015).
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`Case 6:21-cv-00926-ADA Document 391 Filed 09/13/21 Page 14 of 16
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`Fintiv cites the Court’s order in the VLSI case stating “granted” for a motion in limine on
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`“Allegations that Individual Claim Elements Were In The Prior Art,” but truncates the Court’s
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`ruling. Mot. at 8. In VLSI, the Court ruled that individual claim elements were admissible but
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`“need to be discussed in the context of damages or obviousness rather than individually.” Apple
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`will abide by the Court’s reasoning in VLSI, so there is nothing to exclude.
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`J.
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`Fintiv Motion in Limine 3.J: Apple Has No “New Noninfringement And
`Invalidity Opinions,” So There Is Nothing to Exclude.
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`The final part of Fintiv’s motion again identifies no testimony, exhibit, or “arguments of
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`non-infringement or invalidity that were not disclosed in their expert reports” (Mot. at 9), so
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`there is nothing to exclude. Apple agrees that experts should not be permitted to offer at trial
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`new opinions that were not properly disclosed in contentions and expert reports. For instance,
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`Dr. Shamos tried at his deposition to introduce new “widget” theories that appear nowhere in
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`Fintiv’s infringement contentions or in his report. See ECF No. 270 at 18-20. The Court has
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`made clear that such untimely theories are subject to preclusion. See Ex. H, 4/30/21 Hearing Tr.
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`at 76:10-77:9 (“Experts don’t get to amend or supplement at depositions.”). The Court’s no-
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`supplementation rule should apply equally to both parties.
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`III.
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`CONCLUSION
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`For the foregoing reasons, the Court should deny Fintiv’s motion in limine No. 3.
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`Dated: August 31, 2021
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`Respectfully submitted,
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`/s/ John M. Guaragna
`John M. Guaragna
`Texas Bar No. 24043308
`Zachary Loney (Pro Hac Vice)
`Texas Bar No. 24092714
`DLA PIPER LLP (US)
`303 Colorado, Suite 3000
`Austin, TX 78701
`Telephone: (512) 457-7000
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`Case 6:21-cv-00926-ADA Document 391 Filed 09/13/21 Page 15 of 16
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`Facsimile: (512) 457-7001
`john.guaragna@us.dlapiper.com
`
`Mark D. Fowler (Pro Hac Vice)
`DLA PIPER LLP (US)
`2000 University Avenue
`East Palo Alto, California 94303-2214
`Telephone: (650) 833-2000
`Facsimile: (650) 833-2001
`
`Sean C. Cunningham (Pro Hac Vice)
`CA Bar No. 98895
`Erin Gibson (Pro Hac Vice)
`CA Bar No. 229305
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101-4297
`Telephone: 619.699.2700
`Fax: 619.699.2701
`sean.cunningham@dlapiper.com
`erin.gibson@dlapiper.com
`
`Paul Steadman (Pro Hac Vice)
`Stephanie Lim (Pro Hac Vice)
`DLA PIPER LLP (US)
`444 West Lake Street, Ste. 900
`Chicago, IL 60606
`Telephone: 312.368.4000
`
`J. Stephen Ravel
`State Bar No. 16584975
`KELLY HART & HALLMAN LLP
`303 Colorado, Suite 2000
`Austin, TX 78701
`Telephone: 512.495.6329
`Facsimile: 512.495.6401
`steve.ravel@kellyhart.com
`
`Attorneys for Defendant Apple Inc.
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`Case 6:21-cv-00926-ADA Document 391 Filed 09/13/21 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on this 31st day of August 2021, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`by electronic mail.
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`/s/ John M. Guaragna
`John M. Guaragna
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