Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 1 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE WESTERN DISTRICT OF TEXAS
`
`WACODIVISION
`
`FLYPSI, INC. (D/B/A FLYP),
`
`Plaintiff,
`
`vs.
`
`GOOGLE LLC,
`
`Defendant.
`
`Civil Action No. 6:22-cv-31-ADA
`
`JURY TRIAL DEMANDED
`
`es
`
`
`
`PLAINTIFF FLYP’S MOTION TO STRIKE THE EXPERT OPINIONS OF
`
`CHRIS MARTINEZ ON THE COST OF NON-INFRINGING ALTERNATIVES
`
`

`

`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 2 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 2 of 16
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`TABLE OF CONTENTS
`
`T.
`
`ARGUMENT 0. eecccececccceccceccesceescesceeseeeseeseeseessessesseessecseeeseeaecaeeseeeaeeaeeseeeaeesaeeeeeeeeeeenseeaes 1
`
`A. Martinez’sPo Non-Infringing Alternative (All Patents)
`Should Be Excluded. ............ccccccccecccccccecsceesceceseeesceeseeeseecsaecaceeeeceseeeeaeesaeeesseeeseeeseeeseeeesseeeeeeesses 2
`B.—_Martinez’sPo Non-Infringing Alternative (Inbound Only)
`Should Be Excluded. ...............cccccccccccccccsccesccessccesceeseecsceesacceseeeseeceseeeaeeeseeesseeeseeesseeeaeeeseeeeeeesees 6
`
`C.—_Martinez’s Cost to Implement Opinions Should Be Excluded...............0.00cceeeeeeeeeeeeeees 7
`
`TL. CONCLUSION (00. occccccceccccceeccescesceeseesseseeseeeseeseesseseceaecssecsseaecseeseeeseeseeeseseaeeeeeeeeeeseeeseees 10
`
`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 3 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 3 of 16
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`DAC Surgical Partners P.A. v. United Healthcare Servs., Inc.,
`2016 WL 7157522 (S.D. Tex. Dec. 7, 2016)... ..cccccccccccccceeseeceeseecesseeeesseceesseeeesseeeeseeeesseeeees 10
`
`Daedalus Blue LLC v. SZ DJI Tech. Co.,
`Case No. W-20-CV-73-ADA,2022 WL 831619 (W.D.Tex. Feb. 24, 2022).........0cceeeeeee 1
`
`Daubert v. Merrell Dow Pharms., Inc.,
`509 U.S. 579 (1993) ....cceccccccccccsecccessceeessecesseceesseceesseceessecsesseceesaeceesscecesseceessecessaceesssecesseeeesseees 1,8
`
`Function Media, L.L.C. v. Google, Inc.,
`2010 WL 276093 (E.D. Tex. Jan. 15, 2010)... cccceccceeeeeeseeeeesececeeeeeesaeeeeeeeeeseeeesseeeess 10
`
`Grain Processing Corp. v. Am. Maize-Prods. Co.,
`185 F.3d 1341 (Fed. Cir, 1999) .00o ooo ccceccecccccccccccecceesceesseceseeeseeceseeesseceeeeeeeceseeesseseseeesseeeeeeses 1,2
`
`Longhorn HD LLC v. NetScout Sys., Inc.,
`Case No. 2:22-CV-349, 2022 WL 991696 (E.D. Tex. Mar. 31, 2022) .0......cccceeeeceeeeeceeeeeeees2
`
`Webasto Thermo & Comfort N. Am., Inc. v. BesTop, Inc.,
`Case No. 16-cv-13456, 2019 WL 3334563 (E.D. Mich. Jul. 25, 2019)...eee4,5
`
`Other Authorities
`
`Fed. R. Civ. P. 26 voiieecccececccccecceeeeeeeseeeeeeseeseeeeseseeessesesesseeseeeeeeseeeeeeseeeeeseeeeeeeseseeeeseeeseeeseeeeeeeseeeeeeees 1,9
`
`Fed. R. Civ. P. 26(€)(1) .......cecccccccceeecceeceesceeeseeeseeeaeceseeesseceseecaeceseecsaeceseesaesesseceaeceseesesecesseesseeeseeees9
`
`Fed. R. Civ. Po 37 voccecceccccccecccessssccccceceeeseessnsceccececeeeessesccccceceeeeeesessaccececeeeeessssseeceeeeeseeesststeceeeeeeeeeeees 9
`
`Fed. R. Evid. 602 oo.eeececececcccececceeeseeeesessssesesseseeeesesseseesseseseseeeseeeseeeeseeseeeesseeeeeeseeeeeeeseeeseeseeeeeeeeeeeeeeeeee 5
`
`Fed. R. Evid. JO] oecccccccccccccceccceccccccccceeeeessssccccceceeseeesssccccceceeeeesessssccececeesesessssssececeeeeteesssssesecs 5, 7,8
`
`Fed. R. Evid. 702 o0......ccccccccccesccessceesceesscessecesscesecessceseeesecessecesecessecesecesseeesesesseeeseeesaeeeecesssens passim
`
`i
`
`

`

`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 4 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 4 of 16
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`TABLE OF EXHIBITS!
`
`No.
`
`Brief Description
`
`1
`
`2
`
`3
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`Expert Report of Christopher A. Martinez with Respect to Damages (dated October 10,
`2023)
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`Deposition Transcript of Christopher A. Martinez (dated October 31, 2023)
`
`Google’s Third Supplemental Objections and Responseto Flyp’s First Set of
`Interrogatories (Nos. 1-10) (served August 22, 2023)
`
`
`
`4
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`Google’s Objections and Responses to Flyp’s Notice of Rule 30(b)(6) Deposition
`(served July 31, 2023)
`
`' The undersigned herebystates that true and correctcopies of the exhibits noted here are attached
`to this Motion.
`
`ill
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`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 5 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 5 of 16
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`Google’s damages expert proffers unreliable and conclusory opinions regarding non-
`
`infringing alternatives. The Federal Circuit has warnedthata “trial court must proceed with caution
`
`in assessing proof of the availability of substitutes not actually sold during the period of
`
`infringement,” because “[a]fter all, the infringer chose to produce the infringing, rather than the
`
`noninfringing, product.” Grain Processing Corp. v. Am. Maize-Prods. Co., 185 F.3d 1341, 1353
`
`(Fed. Cir. 1999). Here, such caution demands that the Court exercise its gatekeeping role under
`
`Rule 702 and Daubert to exclude Mr. Martinez’s non-infringing alternative opinions
`
`a A
`
`s the Court
`
`is familiar with general motion-to-strike standards and related legal
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`precedents under both FRCP 26 and FRE 702, Flyp will refrain from reciting them here. See
`
`Daedalus Blue LLC v. SZ DJI Tech. Co., Case No. W-20-CV-73-ADA,2022 WL 831619, at *2—
`
`3 (W.D.Tex. Feb. 24, 2022) (citing, inter alia, Fed. R. Civ. P. 26, Fed. R. Evid. 702, and Daubert
`
`v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993)). Rather, Flyp will focus below on the
`
`legal precedents specific to this Motion.
`
`L.
`
`ARGUMENT
`
`Asthe Court may recall from prior proceedings, the Asserted Patents all set forth methods
`
`for providing telephone service using multiple (“secondary”) phone numbers on a single device.
`
`Broadly, the ’770 and °105 Patents address inbound calls to a secondary number(the “Inbound
`
`Patents”), while the’094, ’554, and ’585 Patents address outboundcalls made from the secondary
`
`number(the “Outbound Patents”).
`
`Google’s damages expert, Mr. Chris Martinez (“Martinez”), advances two non-infringing
`
`alternative theories that assume in a conclusory fashion that Google could nerely
`ee. First, for all Asserted Patents (both Inbound and Outbound), Martinez
`
`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 6 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 6 of 16
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`guesthat GooEEcond
`for the Inbound Patents only, Martinez argues that Google couldi
`ee. Martinez conducted no analysis himself to determine whether such
`
`alternatives would be acceptable or available. Rather, Martinez relies entirely on Google’s
`
`technical expert (Dr. Gottesman) and a Google engineer PF for that analysis. Dr.
`Gottesmannf analyses, however, are conclusory and fundamentally flawed. Without
`
`his own analysis, Martinez cannot merely parrot the flawed conclusions of others.
`
`Google also offers for the first time in this case, via Martinez’s rebuttal report, an analysis
`
`of the cost to implement these twoa alternatives. Despite Flyp requesting such analysis
`
`during fact discovery, Google did not provide any such estimates or analysis either via
`
`interrogatory responses or a prepared 30(b)(6) corporate deponent. Google then imexplicably
`
`provided Martinez with such information via engineera.|| provided Martinez with the
`bare conclusion that the implementation of suchF| would ee.”
`
`Indeed, Martinez admitted the conclusory nature of his opinions here during his deposition—
`
`admitting (1) that he had no knowledge of what analysis|| conducted to reach these
`
`conclusions, (2) that he did no analysis himselfat all regarding the acceptability or implementation
`
`costs ofthese alternatives, and (3) that he merely accepted the conclusions ofi. a lay witness.
`
`Martinez’s reliance on untimely and conclusory lay opinion should be excluded.
`
`A.
`
`Martinez’sPd Non-Infringing Alternative (All
`Patents) Should Be Excluded.
`
`It is well-settled that the accused infringer bears the burden ofprovingthat a non-infringing
`
`alternative is both “available” and “acceptable” to consumers. See Grain Processing Corp., 185 at
`
`1353-55 (Fed. Cir. 1999); Longhorn HD LLC v. NetScout Sys., Inc., Case No. 2:22-CV-349, 2022
`
`WL 991696, at *4 (E.D. Tex. Mar. 31, 2022) (holding that “[{a] reliable opinion on whethera
`
`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 7 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 7 of 16
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`productis oris not a non-infringing alternative is incomplete without opining whether the product
`
`is both ‘available’ and ‘acceptable’”).
`
`Here, the entirety of Martinez’s opinionsregardingthe availability and acceptability of the
`
`proposedfii is in paragraphs 131 and 134 ofhis Report.
`
`Paragraph 131 is reproduced in full below:
`
`
`
`(Martinez Report at § 131). Following this paragraph, Martinez offers a single sentence regarding
`
`a conversation with Google engineer|| Together paragraphs 131 and 134 are the whole of
`Martinez’s opinion regarding theii
`
`(Id. at § 134).
`
`Setting asidefi conclusory statement on cost to implement (which is addressed below
`in Section C), Martinez relies entirely on Dr. Gottesman and engineer a to establish
`
`availability and acceptability. Martinez’s report does not indicate that he himself did any analysis
`
`to determine availability and acceptability himself. In addition, Martinez testified that he merely
`
`asked engineerfi for his conclusion and merely acceptedit at face value. (Martinez Transcript
`
`3
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`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 8 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 8 of 16
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`mm. Similarly, Martinez had no understanding ofthe analysis that either or Dr. Gottesman
`
`employed to reach the conclusion on whichherelies. (See id. at 121:6—126:5).
`
`Martinez’s reliance on Dr. Gottesman andii to establish availability and acceptability
`
`is misplaced and conclusory. As to Dr. Gottesman, his opinions regarding the acceptability and
`
`availability of thisee are unreliable and conclusory. Asset forth
`
`in Flyp’s co-pending motionto strike Dr. Gottesman’s opinions, Dr. Gottesman utilized the wrong
`
`framework and merely assumed, without any analysis whatsoever, that Google would be able to
`
`ee. Because Martinez conducted no analysis himself on these
`
`issues, his function is reduced to acting as a mouthpiece for Dr. Gottesman’s unreliable and
`
`conclusory opinions.
`
`As to engineer|| Martinez’s reliance oni for commercial acceptability is even
`more problematic. First, there is no information in the record as to how|| reached his
`conclusiontha was commercially acceptable. Martinez admitted that he did
`
`not inquire into what analysis was conducted. (Martinez Transcript at 121:25—123:1). As a result,
`
`the representation is wholly conclusory and unsupported by any facts. Indeed, Mr. Martinez
`
`sieas-
`(Id. at 122:25—123:1). On this basis alone, Martinez’s reliance on engineer for commercial
`
`acceptability should be stricken. Fed. R. Evid. 702 (expert opinions must be based on sufficient
`
`facts and data, and the productof reliable principles and methods).
`
`Martinez’s reliance on engineer|| can also be independently stricken as improper
`
`opinion testimony by a lay witness. While an expert can rely on lay witnesses for their personal
`
`knowledgeas to foundational facts, an expert cannot simply serve as a mouthpiece for what would
`
`otherwise be improper lay-opinion testimony. See Webasto Thermo & Comfort N. Am., Inc. v.
`
`

`

`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 9 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 9 of 16
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`BesTop, Inc., Case No. 16-cv-13456, 2019 WL 3334563, at *5—7 (E.D. Mich. Jul. 25, 2019)
`
`(precluding expert opinion on non-infringing alternatives based on lay testimony of commercial
`
`acceptability). As the Court is aware, while lay witnesses usually testify only to matters of which
`
`they have personal knowledge (FRE 602), FRE 701 provides limited exceptions to that general
`
`tule. Fed. R. Evid. 701. Lay-opinion testimony may beproffered onlyif it is “(a) rationally based
`
`on the witness’s perception,” is “(b) helpful to clearly understanding the witness’s testimony or
`
`determining a fact in issue,” and is “(c) not based on scientific, technical, or other specialized
`
`knowledge within the scope of Rule 702.”
`
`the information conveyed by a to Martienz goes beyond the bounds of
`Here,
`acceptable lay-opinion testimony. The hypothetical of whetherPo
`I «. conercally cceptbleis
`well beyond engineer percipient factual knowledge and personal experiences. Moreover,
`
`as recognized in Webasto,
`
`the inquiry of whether a product is a commercially acceptable
`
`alternative to a patent necessarily involves an understating of the patents and claims at issue—
`
`which does not have andis clearly within the scope of Rule 702 expert opinion. Webasto,
`
`2019 WL 3334563, at *6 (“even assuming [engineer] has any knowledge of whether or not the
`
`alternative design around would have been an ‘acceptable’ alternative, which is certainly not
`
`indicated in [the expert] Report, any opinion that the proposed design would provideall the same
`
`benefits of the [patent] and would be an acceptable alternative to consumers would involve
`
`explaining to a jury what consumers valued in the [patent] and why and howthe alleged proposed
`
`alternative design-around satisfied those customer preferences and demands—also manifestly
`
`beyond the scope of [engineer’s] percipient factual knowledge and personal experiences”).
`
`Clearly, wasnot disclosedin this case as a Rule 702 expert and Martinez cannot launder
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`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 10 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 10 of 16
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`aT
`
`for Google otherwise impermissible lay-opinion testimony.
`
`B.
`
`Martinez’s Po Google Voice Non-Infringing Alternative
`(Inbound Only) Should Be Excluded.
`
`As with thea. Martinez’s entire opinion regarding aPo
`
`alternative is found in a just a few paragraphs. Again, Martinez relies on the single sentence found
`
`in paragraph 134 on his conversation withi In addition, Martinez relies on the following two
`
`paragraphsrelated to conversations with Dr. Gottesman:
`
`Asbefore, Martinez relies entirely on Dr. Gottesman and engineer|| to establish the
`availability and acceptability ofee. As before, Martinez conducted no
`independent analysis himself, is unsure of what analysis Dr. Gottesman or|| conducted, and
`
`merely accepted their conclusions at face value. (Martinez Transcript at 121:6—126:5).
`
`As withhii Martinez’s reliance on Dr. Gottesman and|| for the
`po is misplaced. As before, Dr. Gottesman’s opinions regarding this alternative are
`
`based on an incorrect framework, are unsupported and conclusory, and thus Martinez cannot
`
`simply parrot such unreliable opinions.
`
`nN
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`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 11 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 11 of 16
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`Similarly, Martinez’s reliance on|| fails here for all the same reasons as before.
`Martinez’s reliance on is conclusory by Martinez’s own admission andthere are no facts on
`the record to supporti analysis whatsoever. There is no information in the record as to how
`| reached his conclusion on acceptability and Martinez admits that he does not know what
`
`analysis was conducted. (Martinez Transcript at 121:25—123:1). As a result, the representation is
`
`wholly conclusory and unsupported by any facts. In addition,a conclusions as to a
`Po lay-opinion testimony and must be excluded under Rules 701 and 702.
`Thus, for all the same reasons that po alternative should be stricken from the
`Martinez Report,P| alternative mustalso be stricken.
`
`Cc.
`
`Martinez’s Cost to Implement Opinions Should Be Excluded.
`
`Setting aside availability and acceptability, Martinez relies on engineer|| for one
`
`additional opinion—that these alternatives would take minimal resources to implement. This
`
`opinion should bestricken as both unreliable and untimely.
`
`The entirety of Martinez’s analysis related to this cost opinion is again found in paragraph
`
`134:
`
`
`
`(Id. at § 134 (emphasis added)). The Martnez Report contains no additional analysis (qualitative
`
`or quantitative) of the cost to implementthese alternatives. As a result, this cost opinion is fatally
`
`unsupported by any facts and is conclusory.
`
`Martinez admitted as much during his deposition. Martinez admitted that | only
`
`provided him with the bare conclusion and no additional guidance:
`
`7
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`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 12 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 12 of 16
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`(Martinez Transcript at 124:1-11). To that end, Martinez testified that he did not know what
`
`analysis conductedto reach his conclusion. (/d. at 123:18—25 and 125:17-—20 fs
`ee). And Martinez admitted that he conducted no
`independentanalysis to confirmii bare conclusion, including determining whetherfii
`
`(id. at 124:12-125:16). This cost opinion must be stricken for what it is by Martinez’s own
`
`admission—a bare, unsupported conclusion.
`
`Moreover, Martinez’s reliance on engineer[il should again also bestricken as improper
`lay opinion. While engineer | might have experience related to normal roll-outs of new
`versions of Google Voice, any evidence that he has experience withPo
`PO is absent from the record and the Martinez Report. It is well-
`
`settled that the proponent of expert testimony mustprove its admissibility by a preponderance of
`
`the evidence. Daubert, 509 U.S. at 592. Google and Martinez have no evidence here that such
`
`Po are rationally tied toa knowledgeor perception.
`Based onthis record,a conclusions here are not facts with which he has experience, but
`
`instead are wholesale speculation and opinion that require technical or other specialized
`
`knowledge within the scope of Rule 702.a conclusion here that costs would bea
`
`Ee
`
`f| These conclusions are improper lay-opinion testimony under Rule 701, and again
`
`oo
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`

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`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 13 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 13 of 16
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`Martinez cannot be permitted to launder such improper testimony through his Report.
`
`Finally, the GEMartinez cost opinion should be stricken as untimely under Rules 26
`
`and 37. “A party who has made a disclosure under Rule 26(a)—or who has responded to an
`
`interrogatory, request for production, or request for admission—must supplement or correctits
`
`disclosure or response .. .
`
`in a timely mannerif the party learns that in some material respect the
`
`disclosure or response is incomplete or incorrect, and if the additional or corrective information
`
`has not otherwise been made known tothe other parties during the discovery processor in writing.”
`
`Fed. R. Civ. P. 26(e)(1). And,ifparty fails to provide informationor identify a witness as required
`
`by the Rule, “the party is not allowed to use that information or witness to supply evidence on a
`
`motion, at a hearing,or at a trial, unless the failure was substantially justified or is harmless.”
`
`Here, Flyp served the following Interrogatory on Google at the outset of fact discovery:
`
`Interrogatory No. 8: For each Asserted Patent, Describe in Detail
`each alleged non-infringing alternative that you contend can be used
`as an alternative to each Asserted Patent, including, but not limited
`to, (a) a description of each alleged non-infringing alternative, (b) a
`description ofwhen and how eachalleged non-infringing alternative
`was developed,(c) the identity ofindividuals involved in developing
`and/or most knowledgeable about each alleged non-infringing
`alternative (if applicable), (d) costs associated with developing and
`implementing each alleged non-infringing alternative, (e) steps and
`the time required to develop and implement each alleged non-
`infringing
`alternative,
`and
`(f)
`any
`evidence
`of
`actual
`commercialization (to the extent
`such alleged noninfringing
`alternative was commercialized) or planned commercialization.
`
`(Ex. 3 at 29-34 (emphasis added)). Throughout discovery, Google respondedto this Interrogatory
`
`by merely identifying its purported alternatives, includingiT Atno time during
`
`fact discovery andat no time since has Google provided any information regarding costs, steps, or
`
`time to implement any such alternative even though they were specifically requested by Flyp. And
`
`Google cannot argue here that such information wasthe province of expert discovery or testimony
`
`such that it could not be disclosed during fact discovery. As established above, the only source of
`
`9
`
`

`

`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 14 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 14 of 16
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`such information wasma: fact witness. Google’s expert, Martinez, conducted no analysis of
`
`costs, steps, or time to implement. Google has no reasonable explanation for withholding this
`
`information during fact discovery and Flyp has been prejudiced by not being able to challenge
`
`Google’s bare conclusion on cost during discovery.
`
`Indeed, Google’s failure to disclose is compoundedby its additional failure to identify a
`
`30(b)(6) witness on the topic of non-infringing alternatives. A party may not proffer through an
`
`expert facts that the party’s 30(b)(6) witnesses denied knowing. See Function Media, L.L.C.v.
`
`Google, Inc., 2010 WL 276093, at *3 (E.D. Tex. Jan. 15, 2010) (striking party’s expert opinions
`
`relying on facts its 30(b)(6) witness claimed not to know); DAC Surgical Partners P.A. v. United
`
`Healthcare Servs., Inc., 2016 WL 7157522, at *3 (S.D. Tex. Dec. 7, 2016) (“Unless it can prove
`
`that the information was not known or wasinaccessible, a corporation cannot later proffer new or
`
`different allegations that could have been madeat the time ofthe 30(b)(6) deposition”). In response
`
`to Flyp’s 30(b)(6) topic 6, which requested information regarding any attempts, plans, or efforts
`
`to implement any identified alternative (Ex. 4 at 12-13), Google stated that it was “not aware of
`
`any relevant, non-privileged information aboutthis Topic as to which any designated witness could
`
`testify” (id.), but months later provided such information to Martinez via engineer
`
`Google’s failure to timely disclose the cost information that Martinez now attempts to rely
`
`upon wasnotjustified or harmless. The Martinez] cost conclusion should be stricken due to
`
`this failure, its unreliability as a bare, unsupported conclusion, and as improper lay opinion.
`
`II.
`
`CONCLUSION
`
`Forthese reasons, the Court should exclude in their entirety Martinez’s two proposed non-
`
`infringing alternatives. Additionally, the Court should exclude Martinez’s wholly conclusory cost-
`
`to-implement opinion for the same reasons.
`
`10
`
`

`

`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 15 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 15 of 16
`
`DATED: November 14, 2023
`
`Respectfully submitted,
`
`/s/ Thomas M. Melsheimer
`Thomas M. Melsheimer
`
`Texas Bar No. 13922550
`tmelsheimer@winston.com
`M.Brett Johnson
`
`Texas Bar No. 00790975
`mbjohnson@winston.com
`Michael A. Bittner
`Texas Bar No. 24064905
`mbittner@winston.com
`C. Charles Liu
`Texas Bar No. 24100410
`ccliu@winston.com
`Steven R. Laxton
`
`Texas Bar No. 24120639
`slaxton@winston.com
`WINSTON & STRAWN LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`Telephone: (214) 453-6500
`
`Matthew R. McCullough
`California Bar No. 301330
`mrecullough@winston.com
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`Telephone: (650) 858-6500
`
`William M. Logan
`Texas Bar No. 24106214
`wlogan@winston.com
`Evan D. Lewis
`Texas Bar No. 24116670
`edlewis@winston.com
`WINSTON & STRAWN LLP
`800 Capitol Street, Suite 2400
`Houston, TX 77002
`Telephone: (713) 651-2766
`
`ATTORNEYS FOR PLAINTIFF
`
`11
`
`

`

`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 16 of 16
`Case 6:22-cv-00031-ADA Document 167 Filed 11/21/23 Page 16 of 16
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 14, 2023, a true and correct copy of the foregoing
`documentwasfiled electronically with the Clerk of Court using the CM/ECFsystem. As ofthis
`date, all counsel of record have consented to electronic service and are being served with a copy
`of this document through the Court’s CM/ECF system and by email. Administrative Policies and
`Procedures for Electronic Filing in Civil and Criminal Cases, Western District of Texas,
`Section 14.
`
`/s/ Michael A. Bittner
`Michael A. Bittner
`
`12
`
`