TQ Delta LLC v. ADTRAN Inc.

Filing 915

MEMORANDUM ORDER: The MOTION to Preclude Expert Testimony Inconsistent with the Court's Claim Construction for Family 10 (D.I. 727 in C.A. 14-954-RGA) is DENIED. Signed by Judge Richard G. Andrews on 10/31/2019. Associated Cases: 1:14-cv-00954-RGA, 1:15-cv-00121-RGA(nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TQ DELTA, LLC,
Plaintiff,
Civil Action No. 14-954-RGA

V.

ADTRAN, INC.,
Defendant.

ADTRAN, INC.,
Plaintiff and
Counterclaim Defendant,
V.

Civil Action No. 15-121-RGA

TQ DELTA, LLC,
Defendant and
Counterclaim Plaintiff.

MEMORANDUM ORDER
Pending before the Court are seven motions submitted by TQ Delta and ADTRAN
regarding Family 10. This opinion will address ADTRAN' s Motion to Preclude Expert
Testimony Inconsistent with the Court' s Claim Construction for Family 10. (D.I. 727). 1 I have
reviewed the parties' briefing and related papers. (D.I. 729, 771 , 787). After full consideration of
the briefing, the motion is resolved as follows.

1

All docket items citations refer to C.A . No . 14-954 unless otherwise noted.

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I.

BACKGROUND
Plaintiff TQ Delta filed this lawsuit against Defendant ADTRAN on July 17, 2014

asserting infringement of one or more patents from ten patent families. (D.I. 1). I have divided
the case into separate trials based on families of patents. (D.I. 369). This motion relates to the
Family 10 patent. ADTRAN moves to exclude the opinions ofTQ Delta' s technical expert Dr.
Arthur Brody that the asserted claims of the ' 660 patent require a "purpose," which ADTRAN
states would contradict the Court' s claim construction order and opinion, are unreliable and
unhelpful to the jury, and render the claims indefinite. (D.I. 729 at 1).

II.

LEGALSTANDARD
"[T]he district court acts as a gatekeeper" to ensure that expert testimony is reliable and

helpful. Schneider v. Fried, 320 F.3d 396, 404 (3d. Cir. 2003). "The primary locus of this
obligation is [Federal Rule of Evidence] 702." Daubert v. Merrell Dow Pharma, Inc., 509 U.S.
579, 589 (1993). Rule 702 codified the Supreme Court' s holding in Daubert. Daubert imposes a
"trilogy" ofrequirements: (1) qualification, (2) reliability, and (3) fit. Schneider, 320 F.3d at 404.
Claim construction is a legal question within the province of the court. Markman v.
Westview Instruments, Inc., 517 U.S. 370, 372 (1996). "No party may contradict the court's

construction to a jury." Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1321 (Fed. Cir.
2009). "As expert testimony inconsistent with the Court' s claim construction is unreliable and
unhelpful to the finder of fact," it should be excluded under the Daubert standard. Personalized
User Model, L.L.P. v. Google, Inc., 2014 WL 807736, at *l (D. Del. Feb. 27, 2014); see also
Exergen, 575 F.3d at 1321. Expert testimony based on an impermissible claim construction is

properly excluded as irrelevant and on the basis that the evidence could confuse the jury. Liquid
Dynamics Corp. v. Vaughan Co. , 449 F.3d 1209, 1224 n.2 (Fed. Cir. 2006).

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When a court does not construe a term or orders that the ordinary meaning applies, expert
testimony on the understanding of a skilled artisan is appropriate to assist the jury. Avid Tech. ,

Inc. v. Harmonic, Inc., 2014 WL 7206301 , at *4 (D. Del. Dec. 17, 2014); Cave Consulting Grp.,
LLC v. Optuminsight, Inc., 2015 WL 740379, at* 15 (N.D. Cal. Feb. 20, 2015).2 Expert
testimony regarding whether an accused device falls within the scope of a court's claim
construction is appropriate and raises a factual issue for the jury to resolve. In re Maxim

Integrated Products, Inc., 2015 WL 5311264, at *4 (W.D . Pa. Sept. 11, 2015).

III.

DISCUSSION
In my claim construction opinion, I ruled that "the purpose of the invention does not

justify" limiting the claim scope to expected noise increases based on impairments, "because the
asserted claims are apparatus claims." (D.I. 375 at 7). Based on that opinion, ADTRAN asserts
that Dr. Brody should be precluded from offering any opinions that the asserted claims require
"purposeful assignment," "purposeful division," or any other "purpose." (D.I. 729 at 1).
ADTRAN argues that in addition to contradicting the Court's claim construction, Dr. Brody' s
testimony should be excluded because it is unreliable, unhelpful to the jury, and renders the
claims indefinite. (Id.).
TQ Delta states that Dr. Brody' s opinions that discuss or use the word "purpose" were
offered in response to ADTRAN' s expert, Dr. Zimmerman, who opined that the assignment of
SNR margins or the grouping of carriers consistent with the asserted claims could be "arbitrary."
(D.I. 771 at 2). Therefore, TQ Delta argues, these descriptions are not in conflict with the Court's
claim construction. (Id.). Dr. Brody did not import a particular "purposeful" limitation in the

2

Such expert testimony, however, cannot amount to claim construction. Cordis Corp. v. Bos. Scientific Corp., 561
F.3d 13 l 9, 1337 (Fed. Cir. 2009); see generally EMC Corp. v. Pure Storage, Inc., 2016 WL 775742, *3 -4 (D. Del.
Feb. 25, 20 I 6).

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asserted claims. Instead, he described that the assignment in the Accused Products of a first SNR
margin and second SNR margin to a respective first and second plurality of carriers as
purposeful, as opposed to being random or accidental. See, e.g., D.I. 760-1 , Ex. 24 at ,r,r 77-80,
91 , 163, 168, 170, 175, 177-78, 180, 182.
In Dr. Zimmerman's Opening Expert Report, he argues that the grouping of bits onto a
first and second plurality of carriers with the same SNR margin is "arbitrary. " (D.I. 760-1 , Ex. 23
at ,r,r 55, 56, 123, 124, 166, 171 , 175, 176, 214). ADTRAN explains that this designation refers
to the nomenclature used to describe the groups of modulated carriers. (D.I. 787 at 4). Even if it
is true that Dr. Zimmerman uses the term "arbitrary" only to describe the division of carriers, to
the extent that Dr. Brody responds to this contention in his Rebuttal Report, he does so without
arguing that the asserted claims are limited to a specific purpose. (D.I. 760-1 , Ex. 24). Dr. Brody
states, "A POSITA would understand that the margins are assigned in a ' purposeful ' manner,"
and "the designation to which plurality each carrier belongs is purposefully determined based on
which one of two different SNR margins is assigned to the carrier. " (Id. at ,r,r 34, 37). Dr. Brody
also offers examples of how the margins assigned in carriers might be assigned in order to
increase the data rate while maintaining a robust system (id. at ,r 35), but I do not find that he
improperly limits the claims to any specific additional "purpose" in doing so. I also do not find
that these examples render his testimony unreliable or render the claims indefinite.
TQ Delta also asserts, " [T]he only reason Dr. Brody would need to discuss this topic at
trial is if Dr. Zimmerman intends to offer his ' arbitrary' opinions at trial. " (D.I. 771 at 4). Dr.
Brody' s testimony relating to the "purposeful" assignment of SNR margins and dividing of
carriers, if offered at trial narrowly to respond to any assertion from ADTRAN ' s expert that

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these processes are "arbitrary," appears further to resolve ADTRAN's concern about Dr. Brody's
"unmoored" testimony being unhelpful to the jury. (D.I. 729 at 9).
When I refused to limit the scope of the claims to a preferred embodiment, I did not reject
the idea that the invention might be configured in a non-arbitrary manner. Consistent with the
Court' s claim construction, Dr. Brody' s testimony does not purport to limit the claims to any
particular purpose, would not be unhelpful to the jury, and would not render the claims
indefinite.

IV.

CONCLUSION
Thus, ADTRAN' s Motion to Preclude is DENIED.
IT IS SO ORDERED this] L day of October, 2019.

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