IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
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`)
`)
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`
`Civil Action No.
`17-cv-00687-WO-JLW
`
`OPTOLUM, INC.,
`Plaintiff,
`
`v.
`CREE, INC.,
`Defendant.
`
`
`
`DEFENDANT CREE, INC.’S MOTION FOR JUDGMENT AS A MATTER OF
`LAW UNDER FEDERAL RULE OF CIVIL PROCEDURE 50(A) REGARDING
`REPRESENTATIVENESS
`
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 329 Filed 11/02/21 Page 1 of 17
`
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
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`)
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`)
`)
`)
`
`Civil Action No.
`17-cv-00687-WO-JLW
`
`OPTOLUM, INC.,
`Plaintiff,
`
`v.
`CREE, INC.,
`Defendant.
`
`
`
`DEFENDANT CREE, INC.’S MOTION FOR JUDGMENT AS A MATTER OF
`LAW UNDER FEDERAL RULE OF CIVIL PROCEDURE 50(A) REGARDING
`REPRESENTATIVENESS
`
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 329 Filed 11/02/21 Page 1 of 17
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`
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`TABLE OF CONTENTS
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`Page
`
`I. STATEMENT OF THE NATURE OF THE MATTER ................ 1
`II. STATEMENT OF FACTS ................................... 1
`III. STATEMENT OF QUESTION PRESENTED ...................... 3
`IV. ARGUMENT ............................................. 3
`A. LEGAL STANDARD .................................. 3
`B. OPTOLUM FAILED TO ESTABLISH THAT THE COMPUTER
`MODELS RELIABLY REPRESENT PHYSICAL PRODUCTS
`AND UNTESTED BULBS .............................. 5
`1. There Is No Substantial Evidence Showing
`That Two Computer Models Represent The
`Alleged Infringing Behavior Of 47 Single
`Ring Bulbs ................................. 6
`2. There Is No Evidence Distinguishing The
`Features Of Non-Infringing Gen 2.5 With
`Others Allegedly Represented ............... 7
`V. CONCLUSION .......................................... 10
`
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`Case 1:17-cv-00687-WO-JLW Document 329 Filed 11/02/21 Page 2 of 17
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`TABLE OF AUTHORITIES
`
`
`CASES
`Belville v. Ford Motor Co.,
`919 F.3d 224 (4th Cir. 2019) ............................ 4
`
`Page
`
`Brooke Grp. Ltd. v. Brown & Williamson Tobacco
`Corp.,
`509 U.S. 209 (1993) .................................. 4, 5
`Certain Led Lighting Devices, Led Power Supplies,
`Comm’n Op, USITC Inv. No. 337-TA-1081 (July 23,
`2019) ................................................... 9
`Daubert v. Merrell Dow Pharms., Inc.,
`509 U.S. 579(1993) ...................................... 4
`
`Eugene Baratto, Textures, LLC v. Brushstrokes Fine
`Art, Inc.,
`701 F. Supp. 2d 1068 (W.D. Wis. 2010) ................... 9
`Fujitsu Ltd. v. Netgear, Inc.,
`2009 WL 3047616 (W.D. Wis. Sept. 18, 2009) ............. 10
`
`Izumi Products Co. v. Koninklijke Philips
`Electronics N.V.,
`315 F. Supp. 2d 589 (D. Del. 2004) ...................... 7
`L & W, Inc. v. Shertech, Inc.,
`471 F.3d 1311 (Fed. Cir. 2006) ....................... 8, 9
`LaserDynamics, Inc. v. Quanta Comput., Inc.,
`694 F.3d 51 (Fed. Cir. 2012) ............................ 5
`
`MEMC Elec. Materials, Inc. v. Mitsubishi Materials
`Silicon Corp.,
`248 F. App’x 199 (Fed. Cir. 2007) ....................... 7
`
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`Case 1:17-cv-00687-WO-JLW Document 329 Filed 11/02/21 Page 3 of 17
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`
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`MobileMedia Ideas LLC v. Apple Inc.,
`780 F.3d 1159 (Fed. Cir. 2015) .......................... 5
`Oglesby v. Gen. Motors Corp.,
`190 F.3d 244 (4th Cir. 1999) ............................ 4
`Russell v. Absolute Collection Servs., Inc.,
`763 F.3d 385 (4th Cir. 2014) ............................ 4
`Thermapure, Inc. v. RXHEAT, LLC,
`35 F. Supp.3d 968 (N.D. Ill. 2014) ...................... 7
`VirnetX, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308 (Fed. Cir. 2014) .......................... 4
`Weisgram v. Marley Co.,
`528 U.S. 440 (2000) ..................................... 4
`Wheatley v. Wicomico Cnty., Maryland,
`390 F.3d 328 (4th Cir. 2004) ............................ 4
`OTHER AUTHORITIES
`Fed. R. Civ. P. 50(a) .................................. 1, 4
`
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`Case 1:17-cv-00687-WO-JLW Document 329 Filed 11/02/21 Page 4 of 17
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`I.
`
`STATEMENT OF THE NATURE OF THE MATTER
`Defendant Cree Inc. (“Cree”) respectfully moves for
`judgment as a matter of law under Federal Rule of Civil
`Procedure 50(a) that Plaintiff OptoLum, Inc. (“OptoLum”) has
`failed to prove infringement of untested accused products.
`II. STATEMENT OF FACTS
`OptoLum alleges that the accused products infringe U.S.
`Patent Nos. 6,831,303 (“the ‘303 patent”) and 7,242,028 (“the
`‘028 patent”) (collectively, “the asserted patents”).1 All
`asserted claims include a “configured to conduct heat”
`limitation. The Court construed “configured to” to mean
`“specifically designed to.”
`OptoLum contends that the asserted patents are infringed
`by over 70 Cree LED bulbs. OptoLum’s infringement expert –
`Mr. McCreary - admits not having any experience designing LED
`bulbs. His infringement opinion groups the Cree LED Bulbs
`into two categories: (a) single ring bulbs (52 bulbs), and
`(b) multiple ring bulbs (21 bulbs). Mr. McCreary’s
`infringement opinions are based on his review of certain
`
`
`1 As identified in the Court’s claim construction order,
`the two asserted patents “are largely the same for purposes
`of claim construction. Dkt. 152 at 1 n.1.
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`computer files, referred to as SolidWorks assembly files,
`which allegedly represent various parts within a discrete
`number of bulbs.
`The accused bulbs have seven different heat sink
`structures, all with distinct shapes and designs. Mr.
`McCreary created two computer models – denoted A19 Gen 1 and
`A19 Gen 2 — to allegedly represent and simulate 47 of the 52
`Single-Ring Cree LED bulbs. He also created two other
`computer models – denoted A21 Gen 1 and Par38 – to allegedly
`represent and simulate the remaining 5 Single Cree LED bulbs
`and all the Multiple-Ring bulbs. Mr. McCreary uses 4 computer
`models to base his infringement opinions as to all accused
`bulbs (over 70 of them).
`Among the bulbs allegedly represented by Mr. McCreary
`made-up models were some referred at Gen 2.5. He admitted
`that those bulbs do not infringe, and this Court subsequently
`entered summary-judgment of non-infringement with respect to
`those bulbs.
`On January 17, 2020, Cree moved to exclude certain
`testimony of Mr. McCreary under Daubert. Dkt. 198.2 In that
`
`2 Cree’s present motion is based on similar grounds as
`those brief and argued in the motion seeking to exclude
`Mr. McCreary’s testimony. Namely, Cree maintains that there
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`motion, Cree explained that Mr. McCreary failed to establish
`that his two made-up computer models reliably represented the
`behavior of 47 single ring bulbs. On October 8, 2021, the
`Court held a hearing on pending motions, and on October 24 it
`denied Cree’s motion (Dkt. 315).
`III. STATEMENT OF QUESTION PRESENTED
`Whether OptoLum has presented sufficient evidence to
`support a jury verdict of infringement as to all bulbs where
`the computer models which allegedly represent large groups of
`untested bulbs are not shown to reliable represent untested
`products.
`IV. ARGUMENT
`A.
`Legal Standard
`Judgment as a matter of law is appropriate where “a party
`has been fully heard on an issue during a jury trial and the
`court finds that a reasonable jury would not have a legally
`sufficient evidentiary basis to find for the party on that
`issue.” Fed. R. Civ. P. 50(a)(1); Russell v. Absolute
`Collection Servs., Inc., 763 F.3d 385, 391 (4th Cir. 2014).
`
`is no substantially reliable evidence to support
`representativeness. For brevity and the Court’s convenience,
`Cree incorporates the arguments raised in its memorandum in
`support of its Daubert motion with respect to Mr. McCreary
`(Dkt. 198) and the reply in support of the same (Dkt. 217).
`
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`“Such a motion is properly granted if the nonmoving party
`failed to make a showing on an essential element of his case
`with respect to which he had the burden of proof.” Wheatley
`v. Wicomico Cnty., Maryland, 390 F.3d 328, 332 (4th Cir. 2004)
`(internal citations and quotations omitted). Rule 50(a)
`allows the trial court to remove issues from the jury's
`consideration “when the facts are sufficiently clear that the
`law requires a particular result.” Weisgram v. Marley Co.,
`528 U.S. 440, 448 (2000) (internal quotations omitted).
`Conclusory expert testimony does not qualify as
`substantial evidence. See VirnetX, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308, 1333 (Fed. Cir. 2014). A reliable expert
`opinion “must be based on scientific, technical, or other
`specialized knowledge and not on belief or speculation, and
`inferences must be derived using . . . valid methods.”
`Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir.
`1999); see also Daubert v. Merrell Dow Pharms., Inc., 509
`U.S. 579, 589-90 (1993) (“Proposed [expert] testimony must be
`supported by appropriate validation— i.e. ‘good grounds’
`based on what is known.”); Belville v. Ford Motor Co., 919
`F.3d 224, 230 (4th Cir. 2019) (“As for [the expert’s]
`qualifications, those alone
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`Conclusory statements and speculations are “insufficient
`to sustain a jury’s verdict.” MobileMedia Ideas LLC v. Apple
`Inc., 780 F.3d 1159, 1172 (Fed. Cir. 2015); LaserDynamics,
`Inc. v. Quanta Comput., Inc., 694 F.3d 51, 67 (Fed. Cir.
`2012). Thus, “[w]hen an expert opinion is not supported by
`sufficient facts to validate it in the eyes of the law, or
`when indisputable record facts contradict or otherwise render
`the opinion unreasonable, it cannot support a jury’s
`verdict.” Brooke Grp. Ltd. v. Brown & Williamson Tobacco
`Corp., 509 U.S. 209, 242 (1993)
`B.
`OptoLum Failed To Establish That The Computer
`Models Reliably Represent Physical Products And
`Untested Bulbs
`OptoLum failed to presented particularized evidence for
`each device accused of infringing the asserted patents as
`would be necessary to prove infringement. For every
`limitation, OptoLum relies on computer models that are not
`accurate representations of physical bulbs, and further
`extrapolates those computer models to apply to large groups
`of unexamined bulbs. Such assertions are conclusory and do
`not qualify as substantial evidence that could support a jury
`verdict that all accused bulbs are infringed, particularly in
`view of the fact that a bulb which was allegedly represented
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`by the computer models – the Gen 2.5 bulb – was subsequently
`held not to infringe.
`1.
`There Is No Substantial Evidence Showing
`That Two Computer Models Represent The
`Alleged Infringing Behavior Of 47 Single
`Ring Bulbs
`OptoLum’s expert relies on simulations of 4 computer
`models to opine on infringement. He maintains that those
`models represent all accused bulbs. He asserts that i) 11
`specific “SKUs are represented by the Corrected A19 Gen 1
`Bulb” model, ii) 36 specific “SKUs are represented by the
`Corrected A19 Gen 2 Bulb” model, iii) 8 specific “SKUs are
`represented by the Corrected Par38 Gen 1 Bulb” model, and iv)
`15 specific “SKUs are represented by the Corrected A21 Gen 1
`Bulb” model. Beyond identifying which products are
`“represented” there is no identification of any reliable
`basis to determine adequate representation.
`OptoLum has not presented sufficient evidence that
`identifies any methodology for ascertaining adequate
`representation. Moreover, OptoLum has presented no evidence
`addressing discrepancies among multiple physical products and
`the single chosen computer model.
`OptoLum’s failure to present such evidence is
`particularly egregious given the fact that the models are
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`admittedly not physically accurate with respect to the
`specific single model bulb from which are based upon. See
`
`MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon
`Corp., 248 F. App’x 199, 203 (Fed. Cir. 2007) (affirming
`exclusion of a patentee’s technical expert on infringement as
`unreliable because the modifications made by the expert
`rendered the tests unreliable); Izumi Products Co. v.
`Koninklijke Philips Electronics N.V., 315 F. Supp. 2d 589,
`602 (D. Del. 2004) (disqualifying opinion where expert
`examined only 2 out of 116 products and infringement as to
`all products depended on those 2).3
`2.
`There Is No Evidence Distinguishing The
`Features Of Non-Infringing Gen 2.5 With
`Others Allegedly Represented
`It is undisputed that Gen 2.5 bulbs do not infringe.
`Yet, there is no reliable evidence addressing their features
`with respect to other bulbs allegedly represented by the made-
`up models. Even cursory visual examination of the Gen 2.5
`heat sink compared to the Gen 2 heat sink illustrates the
`
`
`3 See also Thermapure, Inc. v. RXHEAT, LLC, 35 F. Supp.3d
`968, 984 (N.D. Ill. 2014) (excluding testimony about product
`worked because expert had never “us[ed] or test[ed]” or even
`“physically examined” the accused product the [accused
`product]” reconsidered on other grounds, 2015 WL 110075 (N.D.
`Ill. Jan. 7, 2015).
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`striking similarities between the two bulbs:
`Gen 2.5 (does not infringe) Gen 2 (allegedly infringes)
`
`
`
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`
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`Both of the above structures were allegedly represented
`by the a single made-up computer model and subsequent
`simulation. There is no evidence identifying which common
`features render representativeness reliable, particularly in
`view of the non-infringement of the Gen 2.5.
`The Federal Circuit has previously criticized the type
`of unsupported representative approach that OptoLum attempts
`to proffer as reliable without substantial evidence. In L &
`W, Inc. v. Shertech, Inc., 471 F.3d 1311, 1316–18 (Fed. Cir.
`2006), the infringement expert analyzed 1 of 16 accused
`products and asserted that the one he analyzed was typical of
`all the accused products so his analysis was applicable to
`all accused products. Id. at 1316. There was no evidence,
`
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`however, about the significant features of the accused
`products. Id.;
`Similarly, in Certain Led Lighting Devices, Led Power
`Supplies, Comm’n Op, USITC Inv. No. 337-TA-1081 (July 23,
`2019), the accused products were LED lighting devices. Id. at
`*5. The patentee analyzed 12 of 239 products for one asserted
`patent and 8 out of 42 products for another, arguing that the
`examined products were representative of the rest. The expert
`opined, based on data sheets and product lists, that the
`products contained the same kinds of components and exhibited
`the same infringing behavior. Id. at *7. Without any reason
`or supporting evidence, however, that bare assertion was
`insufficient basis to sustain representativeness. Id. at *8.
`The same reasoning from the above cases applies here.
`OptoLum has not offered sufficient evidence beyond conclusory
`assertions of representativeness. See Eugene Baratto,
`Textures, LLC v. Brushstrokes Fine Art, Inc., 701 F. Supp. 2d
`1068, 1080– 81 (W.D. Wis. 2010) (representative approach
`“does not work when the only evidence supporting such grouping
`is merely that different versions of a product are part of
`the same family and have the same basic functionality”);
`Fujitsu Ltd. v. Netgear, Inc., 2009 WL 3047616, at *4 (W.D.
`
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`Wis. Sept. 18, 2009) (“Grouping does not work when the only
`evidence supporting such grouping is merely that ‘in general,
`different versions of a product are part of the same family
`and have the same basic functionality.’ Slight variations in
`product functionality may be the difference between
`infringement and non-infringement by that product.”)
`(internal citations removed), aff’d in part, rev’d in part on
`other grounds, 620 F.3d 1321 (Fed. Cir. 2010).
`V.
`CONCLUSION
`For the foregoing reasons, Cree respectfully requests
`that the Court enter judgment as a matter of law of non-
`infringement of the asserted patents for all accused bulbs
`or, in the alternative, for the accused bulbs which were not
`modelled and tested.
`
`
`
`Respectfully submitted, November 1, 2021.
`
`/s/ Blaney Harper
`Blaney Harper
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001-2113
`Telephone: (202) 879-3939
`Facsimile: (202) 626-1700
`Email: bharper@jonesday.com
`/s/ Peter D. Siddoway
`Peter D. Siddoway
`NC State Bar No. 45647
`
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`SAGE PATENT GROUP
`4120 Main at North Hills St.,
`Suite 230
`Raleigh, NC, 27609
`Telephone: (984) 219-3358
`Facsimile: (984) 538-0416
`Email: psiddoway@sagepat.com
`
`Attorneys for Defendant Cree, Inc.
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
`
`OPTOLUM, INC.,
`Plaintiff,
`
`Civ. Action No. 1:17-cv-00687
`
`v.
`CREE, INC.,
`Defendant.
`
`
`CERTIFICATE OF WORD COUNT
`I hereby certify that the foregoing complies with the
`limitations set forth in Local Rule 7.3(d) by not exceeding
`6,250 words, including the body of the memorandum, headings
`and footnotes, but excluding the caption, signature lines,
`certificate of service, cover page, and index.
`
`/s/ Peter D. Siddoway
`Peter D. Siddoway
`
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`Case 1:17-cv-00687-WO-JLW Document 329 Filed 11/02/21 Page 16 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`OPTOLUM, INC.,
`Plaintiff,
`
`Civ. Action No. 1:17-cv-00687
`
`v.
`CREE, INC.,
`Defendant.
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that on November 2, 2021, I
`electronically filed the foregoing with the Clerk of the
`Court using the CM/ECF system, which will send notification
`to counsel of record.
`
`/s/ Peter D. Siddoway
`Peter D. Siddoway
`
`
`
`
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