TQ Delta LLC v. Pace Americas Inc.

Filing 1578

MEMORANDUM OPINION regarding Motion to Exclude the Expert Testimony of Dr. Todor Cooklev for Family 4 (D.I. 1464 ). Signed by Judge Richard G. Andrews on 7/14/2021. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

I

'.fQ DELTA, LLC,
Plaintiff;
Civil Action No. 13-1835-RGA

V.

2WIRE, INC.,
Defendant.

MEMORANDUM OPINION

Brian E. Farnan, Michael J. Farnan, FARNAN LLP, Wilmington, DE; Peter J. McAndrews, Paul
W. McAndrews, RajendraA. Chiplunkar, Ashley M. Ratycz, MCANDREWS, HELD &
MALLOY, LTD., Chicago, IL,
Attorneys for Plaintiff.
Jody C. Barillare, MORGAN LEWIS & BOCKIUS LLP, Wilmington, DE; Brett Schuman,
Rachel M. Walsh, GOODWIN PROCTER LLP, San Francisco, CA; Douglas J. Kline,
GOODWIN PROCTER LLP, Boston, MA; Andrew S. Ong, GOODWIN PROCTER LLP,
Redwood City, CA; Cindy Chang, GOODWIN PROCTER LLP, New York, NY,
Attorneys for Defendant.

July 14, 2021

/s/ Richard G. Andrews
ANDREWS, U.S. DISTRICT JUDGE:
Before the Court is Defendant's motion to exclude the expert testimony of Dr. Todor
~ooklev for Family 4. (D.I. 1464). I have considered the parties' briefing. (D.I. 1465, 1517,
1528).
I.

BACKGROUND
PlaintiffTQ Delta filed suit against Defendant 2Wire alleging infringement of twenty-

four patents that span six different patent families. (D.I. 6). The Court divided the case into
separate trials based on the patent families. (D.I. 280). This motion concerns the Family 4
I
Patents, U.S. Patent Nos. 7,292,627 ("the '627 Patent"), 8,090,008 ("the '008 Patent"), and
8,073,041 ("the '041 Patent"). Plaintiff alleges infringement of Claim 26 of the '627 Patent,
CTlaim 14 of the '008 Patent, and Claim 14 of the '041 Patent. The patents-at-issue are directed to
a system and method for scrambling the phase characteristics of carrier signals.
II.

LEGAL STANDARD
Federal Rule of Evidence 702 sets out the requirements for expert witness testimony and

states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the ~xpert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The trial court has the "task of ensuring that an expert's testimony
both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow

Pharms. Inc., 509 U.S. 579, 597 (1993).

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The Third Circuit has explained:
Rule 702 embodies a trilogy of restrictions on expert testimony:
qualification, reliability and fit.
Qualification refers to the
requirement that the witness possess specialized expertise. We have
interpreted this requirement liberally, holding that "a broad range of
knowledge, skills, and training qualify an expert." Secondly, the
testimony must be reliable; it "must be based on the 'methods and
procedures of science' rather than on 'subjective belief or
unsupported speculation'; the expert must have 'good grounds' for
his o[r] her belief. In sum, Daubert holds that an inquiry into the
reliability of scientific evidence under Rule 702 requires a
determination as to its scientific validity." Finally, Rule 702
requires that the expert testimony must fit the issues in the case. In
other words, the expert's testimony must be relevant for the
purposes of the case and must assist the trier of fact. The Supreme
Court explained in Daubert that "Rule 702's 'helpfulness' standard
requires a valid scientific connection to the pertinent inquiry as a
precondition to admissibility."
By means of a so-called "Daubert hearing," the district court acts as
a gatekeeper, preventing opinion testimony that does not meet the
requirements of qualification, reliability and fit from reaching the
Jury.

Schneider ex rel. Estate ofSchneider v. Fried, 320 F.3d 396, 404-05 (3d Cir. 2003) (footnote
and internal citations omitted). 1 At base, "the question of whether the expert is credible or the
opinion is correct is generally a question for the fact finder, not the court." Summit 6, LLC v.

Samsung Elecs. Co., Ltd, 802 F.3d 1283, 1296 (Fed. Cir. 2015). Indeed, "[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert,
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509 U.S. at 596.

1

The Court of Appeals wrote under an earlier version of Rule 702, but the subsequent
amendments to it were not intended to make any substantive change.

3

III.

ANALYSIS
Defendant moves to exclude Plaintiff's expert Dr. Cooklev's testimony and opinions

relating to the testing of the Accused Products for two reasons: (1) Dr. Cooklev's tests are
irrelevant to the question of infringement as the test results do not show how the Accused
Products process a bit stream, and (2) Dr. Cooklev's opinions on the testing are unreliable
because he did not perform or observe the tests. (D.I. 1465 at 1-2). 2

A. Dr. Cooklev's Tests Are Relevant
Defendant argues that Dr. Cooklev's opinions are not probative of infringement, and are
therefore not relevant, because the tests on which the opinions are based do not show how the
Accused Products process a bit stream. (Id. at 14).
Defendant argues that "at most" the tests "show that the Accused 2Wire CPE Products
generate a signal during initialization that meets the requirements of the VDSL2 standard for that
signal." (Id). Defendant asserts that the tests "say nothing about how the Accused 2Wire CPE
Products process the bit stream in the specific way set forth in the Asserted Claims, or in some
other way." (Id). Because the tests do not show this, Defendant maintains that "the Accused
2Wire CPE Products (and any other VDSL2-compliant CPE product) can produce the signal in
any number of ways - including ways that do not infringe the Asserted Claims - as long as the
output matches the phase-shifted coordinates set forth in Table 12-70." (Id at 15). In other
words, Defendant moves to exclude Dr. Cooklev's opinions as the "tests speak only to whether

2

Defendant's motion requests exclusion of Dr. Cooklev's opinions "related to testing of2Wire
products TQ Delta accuses of infringing the [A]sserted [C]laims of the Family 4 Patents." (D.I.
1465 at 1). Upon review of his report, it appears that all of Dr. Cooklev's opinions relate to the
testing of the Accused Products. (See D.I. 1476-5, Exh. U at 7 of 115). Thus, the Court
understands Defendant's motion to move for exclusion of all of Dr. Cooklev's testimony and
op1mons.
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the Accused 2Wire CPE Products comply with VDSL2 and not whether they process a bit stream
in the specific manner claimed by the Asserted Claims." (Id at 16).
Defendant also argues that Dr. Cooklev's testimony will confuse the jury and prejudice
2Wire. (Id.). Defendant maintains, "Given the extremely technical subject matter, the jury is
highly likely to be confused by Dr. Cooklev' s testimony and think he is saying the signal was
created in a way that infringes the Asserted Claims." (Id.).
Plaintiff counters that Dr. Cooklev's opinions are relevant as "they provide evidence
demonstrating that the Accused Products implement the mandatory quadrant scrambling
operation specified in the VDSL2 standard and upon which the asserted claims read." (D.I. 1517
at 9). In Plaintiff's view, "Dr. Cooklev's Testing Opinions provide proof that the Accused
Products in fact implement the quadrant scrambling operations ofVDSL2." (Id at 10).

It is undisputed that Dr. Cooklev is not testifying as to the infringement of the Accused
Products. (D.I. 1479-3, Exh. Cat 12 of28; D.I. 1476-5, Exh. U at 6 of 115). Instead, Dr.
Cooklev was tasked with determining the Accused Products' compliance with the VDSL2
standard. (See D.I. 1476-5, Exh. U at 40 of 115).
Dr. Cooklev performed a Phase Scrambling Test and a Phase Descrambling Test on each
of the representative Accused Products. (Id. at 37 of 115). The purpose of these tests "was to
collect data and analyze the data to determine whether or not the Accused Products perform
phase scrambling, and phase descrambling, as set forth in the VDSL2 standard." (Id at 40 of
115).
Based on the test results, Dr. Cooklev concluded that the Accused Products "perform
phase scrambling in accordance with the VDSL2 standard," (id. at 52-57 of 115, 85-90 of 115)
and that the Accused Products "descramble[] the ... message in accordance with the VDSL2

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standard." (Id at 66-75 of 115, 101-06 of 115). These conclusions are relevant to Plaintiffs
infringement theory that is based on the Accused Products' compliance with VDSL2.
Plaintiffs infringement expert, Dr. Vijay Madisetti, opines "the Asserted Claims cover
the specific quadrant scrambler operations mandated by the VDSL2 standard and such coverage
does not depend on minor implementation details such as the manner in which the computed
amount of phase adjustment is represented internally by a device." (D.I. 1476-3, Exh. Sat 33 of
99). Dr. Cooklev's test results and opinions are relevant to this theory of infringement as his tests
"examined whether or not the Accused Products transmit and/or receive certain initialization
messages by scrambling and/or descrambling the phases of each carrier signal using the quadrant
scrambler in accordance with the VDSL2 standard." (D.1. 1476-5, Exh. U at 40 of 115).
Defendant's arguments for exclusion focus on the relevance of Dr. Cooklev's opinions,
not their scientific validity. I conclude that Dr. Cooklev's opinions are relevant to the issues at
hand as he opines that the Accused Products perform phase scrambling in compliance with the
VDSL2 standard, which supports one of Plaintiffs infringement theories.
Defendant also puts forth an argument that admitting Dr. Cooklev's expert testimony
will confuse the jury because of its "extremely technical subject matter." (D.I. 1465 at 16).
However, it is not unusual for jurors, particularly in patent cases, to grapple with complicated
and highly technical issues. See SenoRx, Inc. v. Hologic, Inc., 920 F. Supp. 2d 565, 571 (D. Del.
2013). Therefore, this argument is not grounds for exclusion of Dr. Cooklev's opinions. "[T]he
[C]ourt will not pre-judge the yet-unnamed jurors by assuming they are unable to digest the facts
and law in this case." Synopsys, Inc. v. Magma Design Automation, 2006 WL 1452803, at* 4
(D. Del. May 25, 2006).

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As Dr. Cooklev's testing and opinions are relevant to Plaintiffs infringement case,
Defendant's motion to exclude for irrelevancy is denied.

B. The Reliability of Dr. Cooklev's Opinions Can be Tested at Trial
Defendant contends that Dr. Cooklev's opinions on the testing of the Accused Products
should be excluded because of his "general lack of knowledge surrounding the tests." (D.I. 1465
at 17). Defendant argues .that because the tests were performed by TracGlobal, a laboratory in
England, and because Dr. Cooklev had "almost no involvement in performing the tests," his
opinions on the tests will be unreliable. (Id. at 17-19).
Plaintiff counters that Dr. Cooklev's opinions on the testing are reliable as he "provided
every essential and necessary detail required to properly execute the testing in the detailed plans
that he wrote." (D.I. 1517 at 15). Plaintiff argues that Dr. Cooklev provided detailed plans for the
tests, visited TracGlobal prior to the testing to observe the test setup, and performed quality
checks on the testing setup. (Id. at 14-15). Plaintiff asserts that Defendant's "criticisms regarding
Dr. Cooklev's involvement in the testing ... are, at best, an issue for cross examination, not a
basis for exclusion." (Id. at 17).
I agree with Plaintiff. The fact that Dr. Cooklev did not perform the tests himself does not
make his opinions on the test results inherently unreliable. Dr. Cooklev' s report and testimony at
his deposition indicate that he planned the testing, visited the testing site, and provided some
oversight for the testing. (D.I. 1476-5. Exh. U at 6-7 of 115; D.I. 1520-10, Exh. 10 at 42:251:25).3 Defendant can use cross examination to probe Dr. Cooklev's knowledge of and

3

In support of their arguments, both parties cite Dr. Cooklev's deposition testimony on the
Family 6 patents. According to Defendant, because Dr. Cooklev' s procedures for interacting
with TracGlobal has been the same for each family of patents, it "did not spend much additional
time at Dr. Cooklev's Family 4 deposition exploring the high-level procedures for Dr. Cooklev's
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oversight of the tests. See Daubert, 509 U.S. at 596. For that reason, Defendant's motion to
exclude Dr. Cooklev's testimony for being unreliable is denied.

IV.

CONCLUSION
For the foregoing reasons, Defendant's motion to exclude Dr. Todor Cooklev's testimony

for Family 4 (D.I. 1464) is denied. A separate order will be entered.

interactions with Tra[c]Global." (D.I. 1465 at 18 fn.1). I too cite Dr. Cooklev's Family 6
deposition testimony in this opinion.
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