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`Case 3:18-cv-02838-K Document 217 Filed 08/23/19 Page 1 of 15 PageID 20084Case 3:18-cv-02838-K Document 217 Filed 08/23/19 Page 1 of 15 PageID 20084
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`
`
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`FRACTUS, S.A.
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`
`
`
`
`Plaintiff,
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`v.
`
`ZTE CORPORATION, ZTE (USA),
`INC., ZTE (TX), INC.
`
`
`
`Defendants.
`
`
`
`
`Civil Action No. 3:18-cv-2838-K
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`
`
`JURY TRIAL DEMANDED
`
`
`
`
`PLAINTIFF FRACTUS’ REPLY IN SUPPORT OF ITS MOTION TO STRIKE
`PORTIONS OF THE EXPERT REPORTS OF CHRIS BARTONE AND VINCE THOMAS
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`

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`TABLE OF CONTENTS
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`INTRODUCTION .......................................................................................................................... 1
`I.
`NON-INFRINGING ALTERNATIVES ........................................................................................... 2
`II.
`a. ZTE Cannot use the Motion to Compel as a Shield and a Sword ............................................ 2
`b. ZTE Seeks to Ignore its Interrogatory Answer ......................................................................... 4
`c. ZTE has Waived Privilege Over Communications with its Experts on
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`Non-Infringing Alternatives ...................................................................................................... 6
`d. Mr. Thomas Cannot Rely on Dr. Bartone ................................................................................. 7
`III. NON-INFRINGEMENT POSITIONS .............................................................................................. 7
`IV. CONCLUSION ............................................................................................................................. 9
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`ii
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`TABLE OF AUTHORITIES
`
`
`Cases
`Alexander v. Hartford Life,
`2008 WL 906786 (N.D. Tex. Apr. 3, 2008) ..................................................................................... 8
`Asia Vital Components Co. v. Asetek Danmark A/S,
`377 F. Supp. 3d 990 (N.D. Cal. 2019) .............................................................................................. 8
`CardioNet, LLC v. ScottCare Corp.,
`2017 WL 4742476 (E.D. Pa. Oct. 19, 2017) .................................................................................... 7
`Cheetah Omni, LLC v. Verizon Servs. Corp.,
`2011 WL 13141035 (E.D. Tex. Mar. 21, 2011) ............................................................................... 4
`Dennis v. United States,
`2017 WL 4778708 (N.D. Tex. Oct. 23, 2017) ................................................................................. 7
`Dollar v. Long Mfg.,
`561 F.2d 613 (5th Cir. 1977) ............................................................................................................ 5
`Elbit Sys. v. Hughes Network Sys.,
`2017 WL 2651618 (E.D. Tex. Jun. 20, 2017) .................................................................................. 5
`Godo Kaisha IP Bridge 1 v. Broadcom Ltd.,
`2017 WL 2869344 (E.D. Tex. Apr. 20, 2017) ..................................................................... 3, 4, 6, 7
`Nanology Alpha LLC v. WITec GmbH,
`2018 WL 4289342 (E.D. Tex. Jul. 11, 2018) ................................................................................... 5
`Woods v. DeAngelo Marine Exhaust, Inc.,
`692 F.3d 1272 (Fed. Cir. 2012) ........................................................................................................ 8
`
`Rules
`
`FED. R. CIV. P. 26(e) .............................................................................................................................. 8
`
`
`
`iii
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`I. INTRODUCTION
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`ZTE spends much of its Response arguing Fractus had an obligation to seek additional fact
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`discovery after this case had been transferred to the Northern District of Texas in order to fill in the
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`gaps of ZTE’s deficient discovery responses. See Dkt. No. 205-1 (“Resp.”) at 1, 6, 7, 7, 8, 9, 9, 12,
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`13, 14. This is nothing more than revisionist history. Both parties agreed that after transfer, fact
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`discovery was unequivocally closed. Fractus and ZTE stated in a joint filing, “Fact discovery in
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`this case is complete.” Dkt. No. 175 at 2. ZTE reiterated its view in a follow-up communication.
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`See App. at 158 (“Following transfer of the litigation to the Northern District, the Court did not
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`enter an order reopening the discovery period or otherwise indicate that the Parties could issue new
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`written discovery or deposition notices.”). ZTE now criticizes Fractus for failing to seek additional
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`discovery, even though neither party contemporaneously believed fact discovery was open. ZTE
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`also argues there should be no consequences for its failure to respond to standard interrogatories.
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`And while ZTE attempts to criticize the cases cited by Fractus, its fails to cite a single case
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`affirmatively supporting its own positions.
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`Some factual background is helpful. On the final day of fact discovery in the Eastern
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`District of Texas, Fractus filed a motion to compel ZTE to produce additional sales data, including
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`the underlying documents ZTE used to generate its data. Dkt. No. 98. While the motion was
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`pending, after expert reports had been served but prior to expert depositions, the case was
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`transferred to the Northern District of Texas. After the transfer, Fractus re-urged its motion to
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`compel in the transferee court. Dkt. No. 145-2 at 1. The Court granted the motion, holding that
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`ZTE’s production was “insufficient as a reliable, credible response.” Dkt. No. 179 at 4. It further
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`ordered ZTE to “produce all documents reflecting or indicating sales of the accused devices for the
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`time periods for which Fractus has asserted the Defendants infringed the patents in suit.” Id. at 7.
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`In a Joint Notice Regarding Scheduling Conference, the parties stated that fact discovery
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`was closed, but expert depositions had yet to occur. Dkt. No. 175 at 2-3. After that filing, the Court
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`issued a scheduling order which stated, “By June 14, 2019, all discovery, including discovery
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`concerning expert witnesses, shall be completed.” Dkt. No. 176 at 2. Pursuant to the parties’ joint
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`understanding that fact discovery did not reopen and that the Court’s passing reference to
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`“discovery” meant expert depositions, Fractus served written discovery directed exclusively at the
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`topics addressed in its motion to compel (which was still pending at that time). ZTE App. at 86-88.
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`ZTE confirmed its understanding was consistent with Fractus’ position, taking the position that the
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`Court’s scheduling order did not reopen fact discovery except for the topics identified in the Order
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`granting the motion to compel. App. at 158 (“Following transfer of the litigation to the Northern
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`District, the Court did not enter an order reopening the discovery period or other wise indicate that
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`the Parties cold issue new written discovery or deposition notices, other than as provided in the
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`Court’s Order on Fractus’s motion to compel.”). ZTE refused to provide new discovery on topics it
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`believed to be outside the scope of the Court’s order. Id. at 161 (Supplemental RFP No. 4). ZTE
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`did not amend or supplement its interrogatory answers at that time. ZTE now seeks to rewrite
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`history by arguing Fractus should have sought additional discovery during this time period.
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`II. NON-INFRINGING ALTERNATIVES
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`a. ZTE Cannot use the Motion to Compel as a Shield and a Sword
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`ZTE is attempting to use the issue of whether fact discovery reopened as both a shield and
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`a sword. ZTE used the Court’s scheduling order as a shield to prevent Fractus from obtaining fact
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`discovery outside the confines of the order granting the motion to compel. It now seeks to use the
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`fact discovery issue as a sword, criticizing Fractus for failing to obtain additional discovery relating
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`to its purported non-infringing alternatives during that period. But this argument cuts both ways.
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`Either fact discovery did not reopen, and the arguments ZTE makes in its brief are meritless, or
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`fact discovery did reopen, and ZTE failed to amend an interrogatory answer it knew was
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`incomplete when discovery “reopened.”
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`Godo Kaisha (cited by Fractus in its Motion but not addressed by ZTE in its Response) is
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`squarely on point. Godo Kaisha IP Bridge 1 v. Broadcom Ltd., 2017 WL 2869344 (E.D. Tex. Apr.
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`20, 2017). In Godo Kaisha, the defendant refused to respond to a non-infringing alternatives
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`interrogatory, arguing the issue was the subject of expert testimony and protected by the work
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`product doctrine. Id. at *2. The defendant’s expert then identified non-infringing alternatives in his
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`rebuttal report. Id. The patentee moved to strike that section of the report, and the court granted the
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`motion. Id. The court first noted that “the identification of non-infringing alternatives is not work
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`product,” even though “analysis undertaken in identifying such non-infringing alternatives might
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`be.” Id. It also rejected the notion that a defendant can wait until expert reports to identify non-
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`infringing alternatives, because “contention interrogatories would cease to be a discovery device
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`because answers to such interrogatories would come only after expert reports had been served and
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`after fact discovery closed.” Id.
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`Godo Kaisha rejects two specific arguments ZTE raises in its Response. First, ZTE argues
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`Fractus was not prejudiced by the late disclosure because it had the opportunity to depose Dr.
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`Bartone (ZTE’s technical expert) and Mr. Thomas (ZTE’s damages expert). Resp. at 8-9. ZTE
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`bears the burden of showing there were acceptable non-infringing alternatives to the Fractus
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`patents. The fact that Fractus was able to cross-examine ZTE’s experts on the bases of their
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`opinions does not change the fact that Fractus was deprived of the ability to develop its own
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`rebuttal evidence or present its own expert testimony on the subject. Fractus’ attorneys traveled to
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`Hong Kong for depositions but could not ask ZTE’s engineers about the feasibility of Dr.
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`Bartone’s design-around or its acceptability to ZTE’s customers. See Godo Kaisha, 2017 WL
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`2869344, at *3 (“Plaintiff . . . traveled to Taiwan to take the deposition of [defendant’s supplier],
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`which Plaintiff alleges would have been responsible for implementing many of [defendant’s]
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`proposed alternatives for the vast majority of [defendant’s] products. Plaintiff could not ask about
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`the feasibility of implementing the alleged non-infringing alternatives because they had not been
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`identified at this point.”); Cheetah Omni, LLC v. Verizon Servs. Corp., 2011 WL 13141035, at *4
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`(E.D. Tex. Mar. 21, 2011) (identifying prejudice to patent owner of untimely non-infringing
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`alternatives). Nor could Fractus’ technical expert Dr. Long address the issue in his expert reports
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`because ZTE waited until its rebuttal report to disclose its theory. Second, ZTE argues Fractus
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`should have filed a motion to compel a more complete response. Resp. at 7. Godo Kaisha rejected
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`this argument too. Godo Kaisha, 2017 WL 2869344, at *3 (“The fact that Plaintiff never filed a
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`motion to compel or to overrule the privilege objection cannot save Defendants. Ultimately,
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`Defendants cannot use a privilege objection as a sword and shield, i.e., to strategically delay the
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`disclosures of non-infringing alternatives to the detriment of [plaintiff], without prejudicing its own
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`expert.”).
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`b. ZTE Seeks to Ignore its Interrogatory Answer
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`ZTE’s Response reads as if Interrogatory No. 5 and FRCP 26(e) do not exist. ZTE argues
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`“ZTE’s response to Interrogatory No. 5 and its response to Fractus’ Rule 30(b)(6) notice made it
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`clear ZTE’s position that NIA information would be a subject of expert discovery.” Resp. at 6.
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`Interrogatory No. 5 asked ZTE to identify “any products you contend are acceptable non-infringing
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`alternatives.” ZTE App. at 9. ZTE responded, “Defendant objects to this Interrogatory to the extent
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`that it seeks privileged information. Defendant further objects to this Interrogatory as premature,
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`given the stage of the case.” Id. ZTE did not object to the interrogatory on the grounds that it called
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`for expert testimony, even though it objected simultaneously to other interrogatories as calling for
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`expert testimony. Id. at 6 (No. 1). There is no way to reconcile ZTE’s response to Interrogatory No.
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`5 with its current position that non-infringing alternatives were the subject of expert testimony.
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`Rule 26(e) requires a party who has responded to an interrogatory to supplement or correct
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`its disclosures “if the party learns that in some material respect the disclosure or response is
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`incomplete or incorrect.” FED. R. CIV. P. 26(e). ZTE never amended or updated its answer to
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`Interrogatory No. 5, despite its current position that discovery reopened in April 2019. Nor does
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`ZTE argue its interrogatory response was “complete” or “correct.” Instead, ZTE argues a party is
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`not required to supplement its interrogatory answers if it provides a different justification for
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`refusing discovery in response to a 30(b)(6) topic. See Resp. at 7. It does not cite a single case
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`supporting this proposition. See Dollar v. Long Mfg., 561 F.2d 613, 616-17 (5th Cir. 1977) (“A
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`partial [interrogatory] answer by a party reserving an undisclosed objection to answering fully is
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`not candid. It is evasive.”). If ZTE’s position were correct, there would be zero consequences for a
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`party that ignores standard interrogatories because the party could later contend the information
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`was the subject of expert testimony.
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`ZTE does not cite a single case where a party failed to disclose a non-infringing alternative
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`during fact discovery, but its expert was permitted to identify said alternative in a rebuttal report.
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`See Resp. at 6-10 (citing Mot. at 3). Instead, ZTE attempts to distinguish Fractus’ cases on the
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`grounds that “in each of the cases cited by Fractus, the plaintiff did not have an opportunity to test
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`the expert’s opinions during discovery.” Resp. at 9. Respectfully, this characterization is
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`inaccurate—in at least two of the cases, the patentee deposed the defendant’s technical expert. See
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`Nanology Alpha LLC v. WITec GmbH, 2018 WL 4289342, at *4 (E.D. Tex. Jul. 11, 2018)
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`(“[Defendant] further argues that Plaintiff has not shown any prejudice because Plaintiff deposed
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`[defendant’s] expert witnesses . . .”); Elbit Sys. v. Hughes Network Sys., 2017 WL 2651618, at *14
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`(E.D. Tex. Jun. 20, 2017) (“Dr. Wicker clarified in deposition . . .”). The other four cases cited by
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`Fractus do not address whether expert depositions occurred. It is a logical leap to characterize
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`silence about depositions as “the plaintiff did not have an opportunity to test the expert’s opinions
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`during discovery.”
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`ZTE also argues “Fractus never objected to ZTE disclosing its position on NIA in its expert
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`reports, nor did Fractus file a motion to compel further disclosure.” Resp. at 6-7. The way to object
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`to an expert’s opinions is to file a Daubert motion or a motion to strike. Once Dr. Bartone and Mr.
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`Thomas offered opinions inconsistent with ZTE’s discovery responses, Fractus moved to strike the
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`improper sections of the reports within the time period established by the scheduling order. ZTE
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`also contends Fractus “had the opportunity to file a motion to compel at any time and to serve
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`supplemental discovery after the Court reopened fact discovery.” Id. at 8. But once again, neither
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`party contemporaneously believed fact discovery reopened. See also Godo Kaisha, 2017 WL
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`2869344, at *3 (“The fact that Plaintiff never filed a motion to compel or to overrule the privilege
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`objection cannot save Defendants.). Further, even if ZTE was correct that it had no obligation to
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`disclose its non-infringing alternatives until expert reports, it had an obligation to disclose its
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`theory in its opening report, not its rebuttal report, because ZTE bears the burden of proof on this
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`issue.
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`c. ZTE has Waived Privilege Over Communications with its Experts on Non-
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`Infringing Alternatives
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`A major consequence of ZTE’s current argument that non-infringing alternatives “calls for
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`expert testimony” (Resp. at 7) is that ZTE has waived privilege over communications with Dr.
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`Bartone and Mr. Thomas relating to non-infringing alternatives. ZTE’s response to Interrogatory
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`No. 5 stated, “Defendant objects to this Interrogatory to the extent that it seeks privileged
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`information. Defendant further objects to this Interrogatory as premature, given the stage of this
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`case.” App. at 9. ZTE never amended this answer, meaning it took the position it had no non-
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`privileged information relating to non-infringing alternatives. ZTE is bound by that answer. Once
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`Dr. Bartone and Mr. Thomas identified non-infringing alternatives in their expert reports, ZTE
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`waived the privilege it claimed in response to Interrogatory No. 5. See Godo Kaisha, 2017 WL
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`2869344, at *2 (“The identification of non-infringing alternatives is not work product.”); Dennis v.
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`United States, 2017 WL 4778708, at *9 (N.D. Tex. Oct. 23, 2017) (“A contention interrogatory
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`seeking a description of the ‘factual basis’ [not privileged communications or work product] [is]
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`precisely the sort contemplated by Fed. R. Civ. P. 33(a)(2).” (alternations in original)). As a result,
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`Fractus is entitled to discovery of all communications between ZTE, Dr. Bartone, and Mr. Thomas
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`on the issue of non-infringing alternatives and to cross-examine ZTE’s witnesses at trial on those
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`communications.
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`d. Mr. Thomas Cannot Rely on Dr. Bartone
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`The Court should strike paragraphs 36 and 91 of Mr. Thomas’ (ZTE’s damages expert)
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`report because he relies on Dr. Bartone’s undisclosed non-infringing alternatives. ZTE cites a
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`single case in its Response to argue Mr. Thomas should not be struck, which ZTE characterizes as
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`holding “denying motion to exclude even where a damages expert relies on an inappropriate non-
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`infringing alternative.” Resp. at 9 (citing CardioNet, LLC v. ScottCare Corp., 2017 WL 4742476
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`(E.D. Pa. Oct. 19, 2017)). Respectfully, this is not the holding. In CardioNet, the patent owner
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`moved to strike non-infringing alternatives from the report of the defendant’s damages expert. Id.
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`at *8. But unlike the present case, the CardioNet patentee moved to strike on the grounds that the
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`defendant failed to prove the purported alternative was available and acceptable to customers. Id.
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`There was no allegation that the defendant relied on a wrongly withheld non-infringing alternative
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`or took a position inconsistent with its interrogatory answers. Id. Further, the court never held that
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`the non-infringing alternative was “inappropriate,” as ZTE characterizes it. See id. at *8-9. Instead,
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`the court simply held there was a factual dispute about whether the defendant presented sufficient
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`evidence to prove the purported alternative was available and acceptable. Id.
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`III. NON-INFRINGEMENT POSITIONS
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`The Court should strike paragraphs 119-131 of Dr. Bartone’s rebuttal report because his
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`non-infringement theory was not disclosed in ZTE’s interrogatory answers. “It is widely accepted
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`that ‘contention interrogatories,’ which ask a party to state the facts upon which it bases a claim or
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`defense, are a permissible form of written discovery.” Alexander v. Hartford Life, 2008 WL
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`906786, at *4 (N.D. Tex. Apr. 3, 2008). Contention interrogatories “serve to narrow and sharpen
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`the issues thereby confining discovery and simplifying trial preparation.” Woods v. DeAngelo
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`Marine Exhaust, Inc., 692 F.3d 1272, 1280 (Fed. Cir. 2012).
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`ZTE contends the following statement in its interrogatory response provided sufficient
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`notice of its non-infringement theory: “the Accused Products do not include multiple portions
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`and/or levels of detail in a multi-band antenna structure each associated with one frequency band
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`as required by the asserted claims of the patents-in-suit.” Resp. at 2. Based on this statement, ZTE
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`contends Fractus was on notice of ZTE’s specific theory: “a first portion of the antenna structure
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`would be the largest portion, with the longest current path, and that this structure would be
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`associated with the lowest frequency.” See App. at 106 (¶ 127). But as Fractus explained in its
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`Motion, this answer does not provide meaningful notice of ZTE’s specific non-infringement
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`theory. As an example, it does not use the words “low,” “lowest,” “long,” or “longest.” Mot. at 7.
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`No reasonable person could divine ZTE’s actual theory from is interrogatory response. See Asia
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`Vital Components Co. v. Asetek Danmark A/S, 377 F. Supp. 3d 990, 1003 (N.D. Cal. 2019) (“A
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`rule than an accused infringer may wait until its expert rebuttal report to set forth theories of non-
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`infringement for the first time would forfeit the benefits of contention interrogatories.”).
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`ZTE’s view is that its only discovery obligation was to identify a limitation without
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`providing the reason that limitation is not infringed. ZTE does not cite a single case in support of
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`its position. See Resp. at 10-14. ZTE criticizes Fractus’ authority (Resp. at 13-14), but it fails to
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`cite any support of its own. See Asia Vital, 377 F. Supp. 3d at 1005 (“By waiting until its expert
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`rebuttal report to disclose its theory, [defendant] prevented [plaintiff] from conducting fact
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`discovery on the issue, thereby hampering its expert discovery as well.”).
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`ZTE offers a variety of justifications for its incomplete interrogatory answer. On page 11 of
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`its Response, ZTE implicitly argues its failure to disclose its non-infringement theory is justified
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`because the argument is premised on new information. See Resp. at 11. ZTE makes this argument
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`implicitly (rather than explicitly) because there is no credible way to argue Dr. Bartone’s theory is
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`based on new information. Fractus has always maintained that the claimed multilevel antenna is
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`different than a grouping of single-band antennas. The specification distinguishes multilevel
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`antennas from antennas where “the multiband behavior is achieved by grouping several single
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`band antennae.” Dkt. No. 1, Ex. A (’432 Patent at 3:45-47). Even the reexamination evidence ZTE
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`cites as justifying its non-infringement position (Resp. at 11) comes from a declaration Fractus’
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`expert Dr. Long submitted to the Patent Office in 2014. See App. at 104-05 (¶ 124).
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` ZTE references “Judge Gilstrap’s claim constructions” multiple times as an excuse for its
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`late disclosure. See Resp. at 3, 11, 12 n.4, 14. These general statements seek to divert attention
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`from the fact that ZTE does not reference a single word from the Court’s claim construction orders.
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`See Resp. at 10-14. This is because the issue of whether the first portion must be associated with
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`the lowest frequency was not a disputed issue during the claim construction process. Dr. Bartone’s
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`non-infringement theory is not based on new or unexpected language from the Court’s claim
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`construction orders. If ZTE had better claim construction evidence showing Dr. Bartone’s theory
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`was based on new claim constructions, it would have cited it.
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`IV. CONCLUSION
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`ZTE failed to identify any non-infringing alternatives in response to Fractus’ interrogatory.
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`That failure prejudiced Fractus because Fractus could not develop its own factual evidence to rebut
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`Dr. Bartone’s assumptions. Fractus cited several cases in support of its position that non-infringing
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`alternatives that are not disclosed in discovery should be struck; ZTE cited none in response.
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`Similarly, ZTE failed to identify its non-infringement position until Dr. Bartone’s rebuttal report.
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`This deprived Fractus of the ability to test Dr. Bartone’s position during fact discovery or to have
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`Fractus’ expert address the opinion in his expert report. And like the non-infringing alternatives,
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`Fractus cited several cases in support of its position; ZTE cited none in response. Fractus’ motion
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`to strike should be granted in its entirety.
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`DATED: August 23, 2019
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`Respectfully submitted,
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`/s/ Ophelia F. Camina
`Max L. Tribble
`TX State Bar No. 20213950
`mtribble@susmangodfrey.com
`Ophelia F. Camina
`TX State Bar No. 03681500
`ocamina@susmangodfrey.com
`Justin A. Nelson
`TX State Bar No. 24034766
`jnelson@ susmangodfrey.com
`SUSMAN GODFREY L.L.P.
`1000 Louisiana, Suite 5100
`Houston, TX 77002-5096
`Telephone: (713) 651-9366
`Facsimile: (713) 654-6666
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`Lora J. Krsulich
`CA State Bar No. 315399
`lkrsulich@susmangodfrey.com
`SUSMAN GODFREY L.L.P.
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`Telephone: (310) 789-3145
`Facsimile: (310) 789-3150
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`Michael F. Heim
`TX State Bar No. 09380923
`mheim@hpcllp.com
`Leslie V. Payne
`TX State Bar No. 00784736
`lpayne@hpcllp.com
`Blaine A. Larson
`TX State Bar No. 24083360
`blarson@hpcllp.com
`Alden G. Harris
`TX State Bar No. 24083138
`aharris@hpcllp.com
`HEIM, PAYNE & CHORUSH, LLP
`1111 Bagby St. Ste. 2100
`Houston, Texas 77002
`Telephone: (713) 221-2000
`Facsimile: (713) 221-2021
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`Attorneys for FRACTUS, S.A.
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`Case 3:18-cv-02838-K Document 217 Filed 08/23/19 Page 15 of 15 PageID 20098Case 3:18-cv-02838-K Document 217 Filed 08/23/19 Page 15 of 15 PageID 20098
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 23, 2019, all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court’s
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`CM/ECF system.
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` /s/ Blaine Larson
` Blaine Larson
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