Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 1 of 20
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`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`Charles K. Verhoeven (Bar No. 170151)
`charlesverhoeven@quinnemanuel.com
`David A. Perlson (Bar No. 209502)
`davidperlson@quinnemanuel.com
`50 California Street, 22nd Floor
`San Francisco, California 94111
`Telephone: (415) 875-6600
`Facsimile: (415) 875-6700
`
`Kevin P.B. Johnson (Bar No. 177129)
`kevinjohnson@quinnemanuel.com
`Victoria F. Maroulis (Bar No. 202603)
`victoriamaroulis@quinnemanuel.com
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone: (650) 801-5000
`Facsimile: (650) 801-5100
`
`Attorneys for Samsung Electronics Co., Ltd.,
`Samsung Electronics America, Inc., and
`Samsung Research America, Inc.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`HUAWEI TECHNOLOGIES CO., LTD., et al.,
`
`SAN FRANCISCO DIVISION
`CASE NO. 16-cv-02787-WHO
`
`Plaintiffs,
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD., et al.,
`
`Defendants.
`
`SAMSUNG ELECTRONICS CO., LTD. &
`SAMSUNG ELECTRONICS AMERICA, INC.
`
`Counterclaim-Plaintiffs,
`
`v.
`
`HUAWEI TECHNOLOGIES CO., LTD.,
`HUAWEI DEVICE USA, INC., HUAWEI
`TECHNOLOGIES USA, INC., & HISILICON
`TECHNOLOGIES CO., LTD.
`
`Counterclaim-Defendants.
`
`SAMSUNG’S REPLY IN SUPPORT
`OF ITS MOTION TO PARTIALLY
`EXCLUDE THE REPORT AND
`TESTIMONY OF JORGE PADILLA,
`MICHAEL J. LASINSKI, AND
`CHARLES L. JACKSON AND TO
`STRIKE THE REBUTTAL
`OPINIONS OF JACQUES DELISLE
`AND ZHI DING
`
`Hearing Date: August 8, 2018
`Time: 2:00 p.m.
`Place: Courtroom 2, 17th Floor
`Judge: Hon. William H. Orrick
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 2 of 20
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`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`INTRODUCTION..................................................................................................................1
`
`ARGUMENT .........................................................................................................................3
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`Mr. Lasinski’s Reliance on Flawed and Inadmissible Information Renders
`His Analysis Highly Unreliable .................................................................................3
`
`Mr. Lasinski and Dr. Padilla, Huawei’s Economic Experts, Improperly
`Opine on French Law.................................................................................................6
`
`Lasinski and Padilla Improperly Summarize the Parties’ Negotiations.....................6
`
`Dr. Padilla Improperly Bolsters Mr. Lasinski’s Testimony.......................................7
`
`The Court Should Exclude Dr. Jackson’s Report ......................................................9
`
`Mr. Lasinski’s Portfolio Strength Measures Are Unreliable....................................11
`
`1.
`
`2.
`
`Mr. Lasinski’s “Approved Contributions” Metric Is Unreliable..................11
`
`Mr. Lasinski’s “Global Deemed SEPs” Metric Is Unreliable......................13
`
`G.
`
`Dr. DeLisle’s Report Is Improper Rebuttal..............................................................14
`
`III.
`
`CONCLUSION ....................................................................................................................15
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`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`Apple Inc.v. Motorola, Inc.,
`757 F.3d 1286 (Fed. Cir. 2014)............................................................................................. 4
`
`Castaic Lake Water Agency v. Whittaker Corp.,
`2002 WL 34700741 (C.D. Cal. Oct. 25, 2002) ..................................................................... 7
`
`Cholakyan v. Mercedes-Benz, USA, LLC,
`281 F.R.D. 534 (C.D. Cal. 2012) .......................................................................................... 8
`
`Creach v. Spokane Cty.,
`2013 WL 12177099 (E.D. Wash. May 2, 2013) ................................................................... 7
`
`Daubert v. Merrell Dow Pharm., Inc., ,
`509 U.S. 579 (1993) ............................................................................................................ 10
`
`Dura Auto. Sys. of Indiana, Inc. v. CTS Corp.,
`285 F.3d 609 (7th Cir. 2002)................................................................................................. 9
`
`Finjan, Inc. v. Sophos, Inc.,
`2016 WL 4268659 (N.D. Cal. Aug. 15, 2016).................................................................... 10
`
`Henricksen v. ConocoPhillips Co.,
`605 F. Supp. 2d 1142 (E.D. Wash. 2009) ............................................................................. 5
`
`Huawei Techs. Co. v. T-Mobile US, Inc.,
`2017 WL 3954108 (E.D. Tex. Aug. 29, 2017)...................................................................... 6
`
`In re BankAtlantic Bancorp, Inc. Sec. Litig.,
`2010 WL 6363027 (S.D. Fla. Sept. 9, 2010)......................................................................... 9
`
`Interwoven, Inc. v. Vertical Computer Sys.,
`2013 WL 3786633 (N.D. Cal. July 18, 2013) ................................................................... 4, 5
`
`K&N Eng'g, Inc v. Spectre Performance,
`2011 WL 13131157 (C.D. Cal. May 12, 2011)..................................................................... 7
`
`Lara v. Delta Int'l Mach. Corp.,
`174 F. Supp. 3d 719 (E.D.N.Y. 2016)................................................................................. 14
`
`Lippe v. Bairnco Corp.,
`288 B.R. 678 (S.D.N.Y. 2003)............................................................................................ 12
`
`Malletier v. Dooney & Bourke, Inc.,
`525 F. Supp. 2d 558 (S.D.N.Y. 2007)............................................................................. 9, 10
`
`Matter of James Wilson Assocs.
`965 F.2d 160 (7th Cir. 1992)................................................................................................. 8
`
`Microsoft Corp. v. Motorola, Inc.
`2013 WL 4008822 (W.D. Wash. Aug. 5, 2013) ................................................................... 7
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`
`Nelson v. Matrix Initiatives,
`2012 WL 3627399 (N.D. Cal. Aug. 21, 2012)...................................................................... 4
`
`Pooshs v. Phillip Morris USA, Inc.,
`287 F.R.D. 543 (N.D. Cal. 2012) .......................................................................................... 5
`
`Quirin v. Lorillard Tobacco Co.,
`2014 WL 883548 (N.D. Ill. Mar. 6, 2014)............................................................................ 8
`
`Rondigo, L.L.C. v. Casco Twp., Mich.,
`537 F. Supp. 2d 891 (E.D. Mich. 2008).............................................................................. 11
`
`Schron v. Troutman Sanders LLP,
`20 N.Y.3d 430 (2013) ....................................................................................................... 3, 4
`
`TCL Commc’n Tech. Holdings, Ltd.,
`2017 WL 6611635 (C.D. Cal. Dec. 21, 2017) .................................................................... 12
`
`United States v. Hill,
`749 F.3d 1250 (10th Cir. 2014)............................................................................................. 7
`
`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015)............................................................................................. 4
`
`Statutes
`Fed. R. Civ. P. 26(a)(2)(D)(ii)......................................................................................................... 14
`
`Fed. R. Civ. Proc. 702 ....................................................................................................................... 5
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 5 of 20
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`I.
`
`INTRODUCTION
`
`Huawei does not dispute several fundamental flaws in its FRAND experts’ opinions. First,
`
`Huawei does not dispute that Mr. Lasinski’s exclusion
`
`
`
`—rests
`
`entirely on hearsay testimony beyond the four corners of the agreement, and did not attempt to
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`corroborate that hearsay. Specifically, although Mr. Lasinski opines
`
`
`
`
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`
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` Huawei does not dispute that black letter contract
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`law dictates that the written agreement itself controls its terms, nor does it dispute that
`
`
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`would be entirely unenforceable. Because there is no reliable factual
`
`foundation for any
`
`, or any legal relevance to it, the Court should exercise its
`
`gatekeeper role and forbid Mr. Lasinski from presenting his comparable license analysis.
`
`Huawei also does not deny that Mr. Lasinski and Dr. Padilla are both unqualified to testify
`
`on French law issues. While Huawei has submitted a report from a French law expert, Prof. Jacques
`
`Raynard in this action, it has not made any attempt to tie his report to Mr. Lasinski’s or Dr. Padilla’s
`
`reports, rendering their opinions unreliable.
`
`Huawei also does not contest the legal principle that an expert witness should not summarize
`
`fact evidence by weighing in on issues like corporate intent. Whereas Samsung’s experts provide
`
`factual background for analyses well within the scope of their expertise, Mr. Lasinski and Dr. Padilla
`
`use their purported view of the facts to advance impermissible legal conclusions that go beyond
`
`their area of expertise that should be excluded.
`
`Next, Huawei does not dispute that it offers opinions by one expert (Dr. Padilla) that are
`
`intended to bolster the opinions of its other expert (Mr. Lasinski). Huawei argues that this bolstering
`
`is proper because Dr. Padilla “offers an economist’s perspective” and “an economic framework” to
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`support his approval of Mr. Lasinski’s methodology. Mr. Lasinski is an accountant, not an
`
`economist. Huawei offers no legal support for the proposition that it is proper for one expert to
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 6 of 20
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`apply an “economic lens” to bolster another expert’s opinions, and in fact courts routinely exclude
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`similar bolstering. Here too, Dr. Padilla’s testimony must be excluded.
`
`Huawei also attempts to defend Dr. Jackson’s role in the preparation of the Concur IP
`
`essentiality database that is critical to Mr. Lasinski’s opinions. Huawei does not dispute, however,
`
`that
`
`in a previous
`
`litigation—an expert that has not appeared here. Dr. Jackson’s oversight role was therefore quite
`
`limited, and, in most cases,
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`.
`
`Huawei attempts to characterize these previous essentiality decisions as mere “data,” but that is
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`untenable—under this interpretation, any party could shield its expert from meaningful review and
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`critique by merely putting the expert’s opinions in an Excel spreadsheet and labeling them “data.”
`
`Huawei also does not contest the basic facts about Mr. Lasinski’s “Approved Contributions”
`
`and “Global Deemed SEPs” portfolio value metrics. Huawei does not dispute that
`
`
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`strongly undercut the notion of any reliable relationship
`
`between contributions and the number of SEPs. Huawei also offers several belated arguments that
`
`Approved Contributions are reliable, but does not contest that Mr. Lasinski offered no such support.
`
`In any event, Huawei’s last-ditch effort to offer empirical evidence outside the context of Mr.
`
`Lasinski’s report fails.
`
`Similarly, Huawei does not dispute Mr. Lasinski’s “Global Deemed SEPs” measure tilts his
`
`portfolio valuations in favor of Huawei. Its lead argument is that this approach favors Huawei less
`
`than a comparison of the Chinese SEPs owned by both companies, but Huawei attacks a straw
`
`man—that Huawei’s metric is superior than another artificial metric proves nothing. Huawei does
`
`not demonstrate Mr. Lasinski’s measure of “Global Deemed SEPs” is in any way reliable or helpful
`
`to the jury.
`
`Huawei also concedes that no Samsung’s expert opined on any aspect of the Chinese Court
`
`system, but it still tries to save Dr. deLisle’s improper rebuttal by arguing he helps “defuse”
`
`Samsung’s counterclaims regarding Huawei’s pursuit of injunctive relief. Huawei’s argument
`fundamentally mischaracterizes Samsung’s counterclaims. Samsung’s experts opine on Huawei’s
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`decision to seek an injunction on its standard essential patents. Dr. deLisle’s entire report therefore
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`constitutes improper rebuttal testimony and must be excluded.
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`Finally, Huawei concedes in its Opposition that Dr. Zhi Ding’s opinions comparing
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`Huawei’s asserted patents to Unwired Planet’s patents are improper rebuttal opinions, stating that
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`Huawei “does not intend to elicit testimony from Dr. Ding on that subject.” Opp. 2-3 n.1.
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`Samsung’s Motion should therefore be granted as to Dr. Ding.
`II.
`ARGUMENT
`
`A.
`
`Mr. Lasinski’s Reliance on Flawed and Inadmissible Information Renders His
`Analysis Highly Unreliable
`It is undisputed that the
`
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` Despite this, Mr. Lasinski excluded this agreement from his “comparable
`
`license” analysis based on
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`at 4. Each of Huawei’s arguments in defense of Mr. Lasinski’s approach fail.
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`First, Huawei argues that Mr. Lasinski’s analysis is permissible because it rests on a
`
`contested factual issue. Id. at 4-5. Huawei is mistaken. Mr. Lasinski rests his analysis on
`
`.
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`This extrinsic information is inadmissible, because it lies outside of the four corners of the
`
`agreement. See Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 436 (2013) (“As a general
`
`rule, extrinsic evidence is inadmissible to alter or add a provision to a written agreement.”); see also
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`Ex. 7, 201:2-13 (Mr. Lasinski testifying that
`
`
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`”).1 As inadmissible non-evidence, it cannot
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`possibly form the basis of a “contested factual issue.”
`
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`1 Huawei claims that irrespective of governing New York law mandating a parol evidence rule, a
`purported statement by
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 8 of 20
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`Second, Huawei argues that the
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`. Opp. 5. But Huawei concedes that
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` Id.; see also Ex. 7, 187:15-188-15 (
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`Huawei has not pointed to any legal authority demonstrating a reasonable basis for relying
`
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`).
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` See also Ex. 7, 197:4-16 (Mr.
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`Lasinski admitting that
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`). Accordingly, because Mr. Lasinski rests his conclusions on “matters which are not
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`reasonably relied upon by other experts…his conclusion has no evidentiary value” and should be
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`excluded. See Nelson v. Matrix Initiatives, 2012 WL 3627399, at *10 (N.D. Cal. Aug. 21, 2012)
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`(internal citations omitted); see also Ex. 7, 214:15-215:8 (Mr. Lasinski admitting that
`
`
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`).
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`Huawei’s two cited cases are inapposite. In Interwoven, Inc. v. Vertical Computer Sys., the
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`court allowed expert testimony where the expert assumed that there was “no acceptable non-
`infringing substitutes” because the expert did not “rel[y] entirely on assumptions and simplifications
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`that are not supported by evidence.” 2013 WL 3786633, at *9 (N.D. Cal. July 18, 2013) (emphasis
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`added); Opp. 6. Here, Mr. Lasinski is relying entirely
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`See Schron, 20 N.Y.3d 430, 436. The only admissible evidence—the
`
`
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`—
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`does not support Mr. Lasinski’s understanding
`
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`
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`The issue is not whether a statement has “value,” but whether it’s admissible as a matter of law.
`Huawei provides no authority that such a statement is admissible as a matter of law, and does not
`distinguish Samsung’s authority that holds to the contrary.
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`In Apple Inc. v. Motorola, Inc., the court specified that “patent damages experts often rely
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`on technical expertise outside of their field” and therefore it was permissible for the patent damages
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`expert to rely upon the technical information provided by the party or one of the party’s technical
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`experts. 757 F.3d 1286, 1320-22 (Fed. Cir. 2014) (overruled on other grounds by Williamson v.
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`Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015)); Opp. 5-6. The situation here is not the same—
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`Mr. Lasinski is not relying upon the “technical expertise” of another expert, but rather
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`. This is impermissible, and Huawei has
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`not provided any authority to the contrary.
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`Third, Huawei takes testimony by certain Samsung witnesses out of context to argue that
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`Mr. Lasinski’s opinions are reliable. Opp. 6.2
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` Huawei also does not cite to a single authority to support
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`the legal proposition that the
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`, or any license agreement, should be
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`interpreted in view of the parties’ “
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` Id.
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`Lastly, Huawei argues that Mr. Lasinski’s analysis of other license agreements is
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`unobjectionable and untainted by his exclusion of
`
`agreement. Id. at 7. That cannot
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`be. Mr. Lasinski rests his FRAND calculations on having identified the appropriate comparable
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`agreements to compare to Huawei’s patent portfolio offers. Ex. 3 ¶¶ 92, 101. By excluding a
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`material comparable agreement
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`in his analysis and
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`calculations, Mr. Lasinski’s testimony is therefore based on insufficient facts and data, is the product
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`of unreliable principles and methods, and should be excluded.3 Fed. R. Civ. Proc. 702; Pooshs v.
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`2
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`3 Huawei’s reliance on Interwoven is unavailing. 2013 WL 3786633, at *11. In Interwoven, the
`court permitted the expert’s analysis because “there is no evidence that any license for the exact
`patents-in-suit was negotiated but not considered” in the expert’s analysis. Id. Here, it is undisputed
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`Phillip Morris USA, Inc., 287 F.R.D. 543, 547 (N.D. Cal. 2012) (courts must ensure there is not
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`“too great an analytical gap” between the data and the opinion proffered) (internal citations omitted);
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`Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1154 (E.D. Wash. 2009) (If “any step” of
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`an expert’s methodology is unreliable, the expert’s testimony is inadmissible) (internal citations
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`omitted).
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`B.
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`Mr. Lasinski and Dr. Padilla, Huawei’s Economic Experts, Improperly Opine
`on French Law
`Huawei does not dispute that Mr. Lasinski and Dr. Padilla are not qualified to opine on
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`French law. See Opp. 7. Huawei instead argues that neither expert actually opines on French law.
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`Huawei’s claim has no merit, however, given that courts and Huawei itself have recognized that
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`French law govern the ETSI IPR Policy, both experts indeed interpret and opine on ETSI principles,
`and yet Huawei has not made any attempt to connect the opinions of its French law expert (Prof.
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`Raynard) to the opinions of Mr. Lasinski and Dr. Padilla in regards to appropriate FRAND rates or
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`good faith negotiations. Mot. 8; see Huawei Techs. Co. v. T-Mobile US, Inc., 2017 WL 3954108,
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`at *2 (E.D. Tex. Aug. 29, 2017) (noting that both parties, including Huawei, agreed that “French
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`law governs the ETSI IPR Policy, and that contract interpretation under French law must be decided
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`by the Court”). Moreover, while Huawei asserts that Samsung’s French law expert “admits French
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`law is silent” as to the meaning of “reasonable or non-discriminatory” in the FRAND context (Opp.
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`7), the actual testimony cited by Huawei
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`
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`Mr. Lasinski and Dr. Padilla’s opinions on
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`French law issues should be excluded.
`
`Lasinski and Padilla Improperly Summarize the Parties’ Negotiations
`C.
`Huawei admits that Mr. Lasinski and Dr. Padilla summarize the parties’ negotiation history.
`
`Opp. 8-11. Huawei defends these summaries by arguing that Samsung’s experts are equally
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`culpable—but this is false. While certain of Samsung’s experts have provided a factual background
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`concerning the parties’ negotiations, those experts have only done so to provide the framework for
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`that the
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 11 of 20
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`which to apply their expert analysis, and do not venture outside of their area of expertise. By
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`contrast, Mr. Lasinski’s and Dr. Padilla’s summaries couch as expert opinion what is truly a factual
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`finding reserved to the jury, such as corporate intent. Id.
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`), Dr. Padilla deviates from the application of any “economic lens” by opining that
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` Mot. Stake Ex. 2 ¶ 6.15(b). Dr. Padilla’s subjective opinions on Samsung’s intent
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`fall well outside of the scope of his economic expertise.
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`Moreover, Dr. Padilla’s testimony is not analogous to the expert testimony permitted in
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`Microsoft Corp. v. Motorola, Inc. regarding whether an SEP holder’s licensing offers were made in
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`good faith. 2013 WL 4008822, at *19 (W.D. Wash. Aug. 5, 2013); Opp. 10. In Microsoft, the court
`allowed the expert to testify that the terms of Motorola’s offers represented “good faith attempt[s.]”
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`Id. Here, Dr. Padilla goes far beyond an economic analysis by assessing
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`including a purported strategy of delay and patent hold-out. Opp. 9.
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`Similar to another holding of the same Microsoft court that Huawei relies upon, this Court should
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`conclude that Dr. Padilla’s testimony is impermissible. Microsoft, 2013 WL 4008822, at *14 (W.D.
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`Wash. Aug. 5, 2013) (“[S]tatements by an expert witness as to the circumstances under which a
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`patent holder fulfills its [F]RAND obligation is beyond the scope of permissible expert testimony.”).
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`Dr. Padilla Improperly Bolsters Mr. Lasinski’s Testimony
`D.
`Huawei argues that Dr. Padilla does not improperly bolster Mr. Lasinski’s testimony, but
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`rather that he only “offers an economist’s perspective on the correct approaches to two tasks:
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`analyzing comparable licenses and assessing patent portfolio strength.” Opp. 11. In other words,
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`Huawei does not dispute that Dr. Padilla bolsters Mr. Lasinski’s opinions but instead argues, without
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`any legal authority, that this bolstering is proper. But, in fact, “the credibility of witnesses is
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`generally not an appropriate subject for expert testimony” because such testimony: (1) “usurps a
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`critical function of the jury”; (2) “is not helpful to the jury, which can make its own determination
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`of credibility”; and (3) when provided by “impressively qualified experts on the credibility of other
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 12 of 20
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`witnesses is prejudicial and unduly influences the jury.” United States v. Hill, 749 F.3d 1250, 1258
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`(10th Cir. 2014) (internal citations omitted).4
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`The Matter of James Wilson Assocs. is instructive. 965 F.2d 160, 173 (7th Cir. 1992). There,
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`Judge Posner excluded the expert report of an architect whose testimony consisted of “vouching for
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`the truth” of what a construction expert told the architect. Id. Huawei is attempting this type of
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`“hand-off” by having Dr. Padilla, an economist, restate the opinions of Mr. Lasinski, an accountant
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`(Ex. 7, 10:2-11), by, for example,
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`10-11.
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` Mot. Ex. 3, ¶ 3.9; see also Mot.
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`Likewise, in Quirin v. Lorillard Tobacco Co., the district court excluded opinions by a
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`cancer and immunology expert who bolstered tests conducted by other experts on the products in
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`suit. 2014 WL 883548, at *7-8 (N.D. Ill. Mar. 6, 2014). The excluded testimony consisted of
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`summary sentences such as: “This investigation was carefully crafted, executed appropriately, and
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`in-depth analyses are used to support the conclusion stated.” Id. at *8. Just like the excluded expert
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`in Quirin v. Lorillard Tobacco Co., Dr. Padilla’s “expert report amounts to little more than a
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`summary of [Mr.Lasinski’s] conclusions, followed by a ‘bottom-line’ statement that those
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`conclusions are valid.” Id. Dr. Padilla’s “bare assertions about the merits” of Mr. Lasinski’s report
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`“add little, if any, value to the trier of fact.” Id. Consequently, his bolstering of Mr. Lasinski should
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`be excluded.
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`4 See also Castaic Lake Water Agency v. Whittaker Corp., 2002 WL 34700741, at *5 (C.D. Cal.
`Oct. 25, 2002) (“A scientist, however well credentialed he may be, is not permitted to be the
`mouthpiece of a scientist in a different specialty”) (internal citations omitted); K&N Eng'g, Inc v.
`Spectre Performance, 2011 WL 13131157, at *10 (C.D. Cal. May 12, 2011) (“the testifying expert
`cannot vouch for the truth of the other expert’s conclusion”); Creach v. Spokane Cty., 2013 WL
`12177099, at *3 (E.D. Wash. May 2, 2013) (finding that an expert “may not provide expert
`testimony that is needlessly cumulative or that simply bolsters” another expert); Cholakyan v.
`Mercedes-Benz, USA, LLC, 281 F.R.D. 534, 547 (C.D. Cal. 2012) (excluding an expert who “quotes
`extensively from [other experts’] reports indicat[ing] not that he is using them to confirm the validity
`of his opinions, but rather that he seeks to serve as a mouthpiece for others.”).
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 13 of 20
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`The Court Should Exclude Dr. Jackson’s Report
`E.
`Huawei fails to rebut that Dr. Jackson has signed off on a database that was developed under
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`the oversight of Dr. Apostolos Kakaes, and called it his own.5 Mot. 11-14. Specifically, Dr. Jackson
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`could not identify a single “essentiality” decision that was made under his oversight rather than Dr.
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`Kakaes’. Mot. 12. He could not do so notwithstanding his representation
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` Ex. 4, 99. Drawing the reliability of this process into question,
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`Huawei’s experts did not track which essentiality decisions were made specifically under Dr.
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`Jackson and which were simply copied over from work done under the guidance of Dr. Kakaes.
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`Mot. 11-14.
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`Faced with these facts, Huawei is forced to argue the Concur IP database is simply “data”
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`collected by others. Opp. 12. But to describe the Concur IP database as simple “data” is untenable.
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`. Ex. 4,
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`110.6 That is not “data”—that is expert analysis.7
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`5 Huawei argues it constitutes “overreach” to exclude Dr. Jackson’s whole report. Opp. 15-16.
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`. But
`Huawei is correct that Samsung has not made Daubert arguments relating to the background and
`other generalized opinions offered by Dr. Jackson, and therefore would be amenable to only striking
`the portions of his report (and any other expert reports) that discuss or rely upon the Concur IP
`database.
`6 For the same reason, Huawei’s argument that Samsung “has not identified any opinions of Dr.
`Kakaes that Dr. Jackson is allegedly parroting” misses the mark. Opp. 12. The essentiality decisions
`made by Concur IP under the direction of Dr. Kakaes are, under relevant principles, the expert
`opinions of Dr. Kakaes. Dura Auto. Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir.
`2002). By copying all of those essentiality decisions into the current database, Dr. Jackson is
`parroting them as his own. In re BankAtlantic Bancorp, Inc. Sec. Litig., 2010 WL 6363027, at *8
`(S.D. Fla. Sept. 9, 2010) (exclusion of expert testimony that merely “parrots the statements of
`others”).
`7 A hypothetical demonstrates the absurdity of Huawei’s position. Suppose an associate working
`for Huawei’s counsel were tasked with going through the Concur IP database and marking all of
`Huawei’s patents “essential” while deeming all other patents “non-essential.”
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` Yet under Huawei’s
`argument, it would be permissible for Dr. Jackson to rely on this “database” because it is mere “data
`collected by others.” Opp. 12. That cannot be the law.
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 14 of 20
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`It is true that an expert can rely on staff members to undertake economic or other analyses
`under their supervision. Dura Auto. Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir.
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`2002) ( “An expert witness is permitted to use assistants in formulating his expert opinion, and
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`normally they need not themselves testify”). But courts have recognized that the expert must have
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`“supervised them carefully.” See Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 666
`(S.D.N.Y. 2007).8 The record is clear that Dr. Jackson did not supervise Concur IP for the vast
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`majority of judgments comprising the essentiality database, and that such decisions were made
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`under the oversight of Dr. Kakaes. Mot. 12. The database is therefore unreliable.
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`Huawei next argues that Dr. Kakaes and Concur IP took great care when they created the
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`original Huawei “Concur IP” database. Opp. 13 (“a team of professionals from Concur IP with
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`engineering degrees and experience in preparing patent landscaping studies prepared a ‘census’ of
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`all patents that had been declared to ETSI as essential to 2G, 3G, and 4G wireless standards”); id.
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`at 15 (citing the fact the TCL court approved the use of a previous iteration of a Concur IP database
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`overseen by Dr. Kakaes). Any care that Dr. Kakaes and Concur IP exercised, however, does not
`cure the fatal flaw here—that Dr. Kakaes created the database rather than Dr. Jackson. Even if the
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`original Concur IP database was perfect, the problem remains—Dr. Jackson is rubber-stamping
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`work that is not his own. Malletier, 525 F. Supp. 2d at 666 (“a party cannot call an expert simply
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`as a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as
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`the basis of his testimony”).
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`Finally, Huawei’s contention that Dr. Jackson provided “extensive oversight” is unfounded.
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`. This is anything but “extensive” oversight. The reality is most of the database decisions
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`were made by Concur IP under the guidance of Dr. Kakaes, and to the extent Dr. Jackson did oversee
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`8 Huawei’s argument that it is legally permissible for an expert to rubber-stamp the work of others
`without “any” oversight is untenable. Opp. 14. Huawei is proposing a legal rule that it is permissible
`for an expert to serve as a mere conduit for another. That is not the law.
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`Case 3:16-cv-02787-WHO Document 379 Filed 07/24/18 Page 15 of 20
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`some of the decisions made in the database, Dr. Jackson’s participation was minimal. This is not
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`enough to establish Dr. Jackson’s opinions have a “reliable foundation.