Case 2:23-cv-00059-JRG-RSP Document 327 Filed 02/14/25 Page 1 of 6 PageID #:
`14190
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`CHARTER COMMUNICATIONS, INC. et
`al.,
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`Defendants.
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`COMCAST CABLE COMMUNICATIONS,
`LLC, D/B/A XFINITY, et al.,
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`Defendants.
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`Lead Case No. 2:23-cv-00059-JRG
`Member Case No. 2:23-cv-00062-JRG
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`TOUCHSTREAM’S RESPONSE TO
` CHARTER DEFENDANTS’ OBJECTIONS TO ORDER (DKT. 259) GRANTING IN
`PART PLAINTIFF’S MOTION TO STRIKE OPINIONS OF
`W. CHRISTOPHER BAKEWELL REGARDING XUMO
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`Case 2:23-cv-00059-JRG-RSP Document 327 Filed 02/14/25 Page 2 of 6 PageID #:
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`Touchstream respectfully submits this response to the Charter Defendants’ Objection (Dkt.
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`291) Granting in Part Plaintiff’s Motion to Strike Opinions of W. Christopher Bakewell Regarding
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`Xumo (Dkt. 259). Although Charter may disagree with Magistrate Judge Payne’s Order, Charter
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`falls far short of showing the Order is “clearly erroneous” and “contrary to law.” Fed. R. Civ. P.
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`72(a). As explained below, Judge Payne thoroughly analyzed and rejected the arguments in
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`Charter’s Objection that Mr. Bakewell should be allowed to testify regarding the Xumo device for
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`purposes of showing that the accused Send-to-TV feature has little value to Charter. At its core,
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`Mr. Bakewell’s opinion surfaces an
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`inadmissible non-infringing alternatives argument
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`unsupported by technical expert testimony. For the reasons discussed below, the Court should deny
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`Charter’s Objection.
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`First, Charter inaccurately insists that it is “undisputed” that Charter’s Xumo device cannot
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`perform the accused Send-to-TV functionality. Dkt. 291 at 1-2. But Touchstream observed, and
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`Judge Payne ruled, that there is no evidence in the record to support that contention. Dkt. 89 at 7;
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`Dkt. 259 at 4. Charter “does not rely on a technical analysis from another expert that Xumo does
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`not infringe.” Dkt. 259 at 4. Instead, the “undisputed” assertion that Xumo “does not provide” the
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`accused Send-to-TV feature is based purely on Charter’s say-so. Dkt. 291 at 2-3 (citing Bakewell
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`Rep., Dkt. 115-2 ¶ 61).1 Yet the Objection itself admits that this is insufficient for a damages
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`expert’s NIA opinion to withstand exclusion. Id. at 4 (conceding that NIA opinions shall be struck
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`where they lack “citation to any expert technical opinion.”) (quoting Finalrod IP, LLC v.
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`Endurance Lift Sols., Inc., No. 20-CV-00189-JRG-RSP, 2021 WL 4943649, at *3 (E.D. Tex. Oct.
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`22, 2021)). Furthermore, to the extent that Mr. Bakewell assumes Xumo does not infringe because
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`1 The lone citation in Mr. Bakewell’s report for the proposition that the Xumo device is not
`equipped with the accused Send-to-TV feature is the Deposition of Casey Paiz, a Charter employee
`who is not a technical witness in this action. Dkt. 115-2 ¶ 61 n.108.
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`1
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`Touchstream has not accused that Xumo infringes, courts have previously held that this reasoning
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`warrants the exclusion of expert damages opinions – including, specifically, Mr. Bakewell’s. See
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`Sprint Commc’ns Co., L.P. v. Mediacom Commc’ns Corp., No. 17-1736, 2021 WL 982734, at *2
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`(D. Del. Mar. 16, 2021) (“I will exclude any testimony from Bakewell that Sprint has not sued
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`Verizon, AT&T, Level 3, MCI, and Net2Phone, and any testimony that the fact that Sprint has not
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`sued someone shows that the someone does not infringe Sprint’s patents.”). Nor could
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`Touchstream have accused the Xumo device where, on this record, its release was not even
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`announced until the year after Touchstream filed suit. Dkt. 89 at 7 (citing Bakewell Rep., Dkt. 89-
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`1 ¶ 83). Accordingly, there is no basis for Mr. Bakewell’s opinion that the Xumo device does not
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`infringe on Touchstream’s patents, which renders his opinion unreliable, unhelpful, misleading,
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`and unfairly prejudicial.
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`Second, Charter’s Objection reiterates its circular argument that Mr. Bakewell does not
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`contend that Xumo does not infringe Touchstream’s patents but, rather, merely observes that Xumo
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`“does not include the accused Send-to-TV feature.” Dkt. 291 at 4. In support, Charter explains that
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`Mr. Bakewell discusses Xumo in a section of his report separate from his NIA opinions. In turn,
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`Charter avers that because Mr. Bakewell does not call Xumo an NIA, the law on NIAs must not
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`apply. Dkt. 291 at 4; see also Dkt. 139 at 4. But, sure enough, Mr. Bakewell understands that Send-
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`to-TV is the accused feature in this case. Dkt. 291 at 4-5 (criticizing Dr. Mangum’s opinion for not
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`considering “the unavailability of the accused feature on Charter’s newer Xumo devices.”)
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`(emphasis added); Dkt. 89 at 6-7; Dkt. 89-1 ¶ 239 (“There is evidence that the non-infringing
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`alternatives could be implemented later in time, and the Send-to-TV feature is being discontinued
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`in newer STBs.”). Notwithstanding Charter’s strained arguments, Mr. Bakewell’s Xumo testimony
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`is a thinly veiled NIA argument likely to confuse the jury and prejudice Touchstream. Therefore,
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`Charter’s “commitment” not to present any argument or evidence at trial that Xumo is an NIA is
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`an empty promise. Dkt. 291 at 5.
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`Third, Charter does not endeavor to explain how Mr. Bakewell’s testimony regarding the
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`Xumo device is helpful to the jury where, according to the record here, Xumo was launched in
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`2024, well after Touchstream filed this lawsuit in February 2023. Dkt. 89 at 7. And Mr. Bakewell’s
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`use of a 2016 hypothetical negotiation date further exacerbates his opinion’s unhelpfulness to the
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`jury because he does not explain how the Xumo device, even if it does not infringe, would be
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`available or foreseeable to the parties at the time of the hypothetical negotiation. Id. at 7, n.4. Nor
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`did Mr. Bakewell explain how the Xumo alternative could be of any value to Charter in a
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`hypothetical negotiation if it is infringing or not acceptable to users. Charter failed to address these
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`arguments below, which are independently sufficient to uphold Judge Payne’s ruling and are now
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`waived. Hence, because there is no evidence of Xumo’s availability, foreseeability, and non-
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`infringement to support Mr. Bakewell’s conclusions or otherwise tie them to the facts of this case,
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`Judge Payne properly excluded that portion of his expert opinion.
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`Fourth, Charter tries to salvage Mr. Bakewell’s unfounded claim that Xumo is an NIA by
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`criticizing the opinion of Touchstream’s damages expert, Dr. Mangum, for not considering “the
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`unavailability of the accused feature on Charter’s newer Xumo devices.” Dkt. 291 at 4-5. But
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`Charter ignores that, even if there was a factual basis for calling Xumo an NIA, Dr. Mangum would
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`be hampered in his analysis thereof because the limited discovery on the Xumo device has been
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`incidental to the issues truly at play in this action – which makes sense, because Charter never
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`identified Xumo as an NIA during discovery. Dkt. 89 at 7. In turn, Mr. Bakewell should not be
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`permitted to mislead and confuse the jury at trial “in reference to the Georgia-Pacific factors” or
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`“to rebut specific statements of Dr. Mangum,” because Dr. Mangum had insufficient evidence
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`available on the Xumo device.
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`For the foregoing reasons, this Court should overrule Charter’s objections to Judge Payne’s
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`order striking portions of Mr. Bakewell’s testimony.
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`Date: February 7, 2025
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`Respectfully submitted,
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`/s/ Ryan D. Dykal
`Lead Counsel
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`Ryan D. Dykal (pro hac vice)
`Jordan T. Bergsten (pro hac vice)
`Mark Schafer (pro hac vice)
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`Philip A. Eckert (pro hac vice)
`Anita Liu (TX State Bar No. 24134054)
`BOIES SCHILLER FLEXNER LLP
`1401 New York Ave, NW
`Washington, D.C. 20005
`(t) 202-274-1109
`rdykal@bsfllp.com
`jbergsten@bsfllp.com
`mschafer@bsfllp.com
`peckert@bsfllp.com
`aliu@bsfllp.com
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`John M. Lyons (pro hac vice)
`Sabina Mariella (pro hac vice)
`Sophie Roytblat (pro hac vice)
`BOIES SCHILLER FLEXNER LLP
`55 Hudson Yards, 20th Floor
`New York, NY 10001
`jlyons@bsfllp.com
`smariella@bsfllp.com
`sroytblat@bsfllp.com
`
`
`Melissa Smith (TX State Bar No. 24001351)
`GILLAM & SMITH LLP
`303 S. Washington Ave.
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`Case 2:23-cv-00059-JRG-RSP Document 327 Filed 02/14/25 Page 6 of 6 PageID #:
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`Marshall, TX 75670
`(t) 903-934-8450
`melissa@gillamsmithlaw.com
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`
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`Counsel for Plaintiff Touchstream Technologies,
`Inc.
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`CERTIFICATE OF SERVICE
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`I, Ryan D. Dykal, declare under penalty of perjury that a true and correct copy of the
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`foregoing Response to Charter Defendants’ Objections to Order (Dkt. 259) Granting in Part
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`Plaintiff’s Motion to Strike Opinions of W. Christopher Bakewell Regarding Xumo was filed on
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`February 7, 2025 by means of the U.S. District Court for the Eastern District of Texas’s Case
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`Management/Electronic Case Filing (CM/ECF), which will send notification of such filing by
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`electronic mail to all ECF participants.
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`By: /s/ Ryan D. Dykal
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` Ryan D. Dykal
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`5
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