AVM Technologies LLC v. Intel Corporation

Filing 666

MEMORANDUM ORDER Denying 433 Combined MOTION for Partial Summary Judgment and to Exclude Testimony of Peter Ivey Regarding Invalidity Based on the Pentium Pro P6 (see Order for further details). Signed by Judge Richard G. Andrews on 4/28/2017. (ksr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

AVM TECHNOLOGIES, LLC,
Plaintiff;

v.

Civil Action No. 15-33-RGA

INTEL CORPORATION,
Defendant.
MEMORANDUM ORDER
Presently before the Court is Plaintiffs Motion for Partial Summary Judgment and to
Exclude Testimony of Peter Ivey Regarding Invalidity Based on the Pentium Pro ("P6") (D.I.
433) and related briefing (D.I. 434, 506, 536). 1 The Court heard oral argument on April 12,
2017. For the reasons that follow, IT IS HEREBY ORDERED THAT Plaintiff's Motion for
Partial Summary Judgment and to Exclude Testimony of Peter Ivey (D.I. 433) is DENIED.
A.

Motion to Exclude Expert Testimony
"[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 (3rd 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). It reads:
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;
1

Defendant seeks partial summary judgment that the P6 register files meet the delay limitation of claim 12 of the
'547 patent under the theory that I may grant summary judgment for a non-movant under Federal Rule of Civil
Procedutre 56(f)( 1). (D.1. 506 at 10). Since I do not have the benefit of full briefing on the issue of whether the P6
register files meet this limitation and there appears to be a dispute of material fact on this issue, I am not inclined to
grant Defendant's request.

(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702.
Rule 702, as amended in 2000, 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. My determination that proffered testimony complies with these

prerequisites is governed by Federal Rule of Evidence 104(a). Daubert, 509 U.S. at 592. As
such, I must find Daubert' s trilogy of requirements is met by a preponderance of the evidence.
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3rd Cir. 1994).

On the one hand, this showing requires the party proffering expert testimony do more
than make aprimafacie case ofreliability. Id. at 743. On the other hand, the "evidentiary
requirement of reliability is lower than the merits standard of correctness." Id. The proffering
party does not "have to prove their case twice-they do not have to demonstrate to the judge by a
preponderance of the evidence that the assessments of their experts are correct, they only have to
demonstrate by a preponderance of evidence that their opinions are reliable." Id. at 744.
Plaintiffs objections to Dr. Ivey's testimony fall within the reliability prong of the
Daubert trilogy. Under this prong, "an expert's testimony is admissible so long as the process or

technique the expert used in formulating the opinion is reliable." Paoli, 35 F.3d at 742.
Reliability does not require certainty, Daubert, 509 U.S. at 590, but does require "validity,"
Paoli, 35 F.3d at 742. The Third Circuit has warned, however, that "the reliability requirement

must not be used as a tool by which the court excludes all questionably reliable evidence." Id. at
744. An expert's opinion must be founded on good grounds, not perfect ones. Id. I can
conclude there are good grounds for the opinion even if I "think[] there are better grounds for
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some alternative conclusion" or that the expert's methodology "has some flaws such that if they
had been corrected, the scientist would have reached a different result." Id. The Third Circuit
has directed that a "judge frequently should find an expert's methodology helpful even when the
judge thinks that the expert's technique has flaws sufficient to render the conclusions
inaccurate." Id. at 744-45.
Plaintiff argues first that Dr. Ivey's opinion as to whether the P6 anticipates the asserted
claims is unreliable because he relied on "uncorroborated statements" made by "an Intel engineer
and former engineer/paid consultant." (D.I. 434 at 22). Defendant counters that Dr. Ivey did
corroborate the statements to which Plaintiff objects through his review of "P6 schematics,
design manuals, and timing diagrams" combined with his experience as a person of skill in the
art. (D.I. 506 at 16). Plaintiff does not respond to this rebuttal, instead arguing in reply that the
engineer/consultant, upon whose statement Ivey relied, did not review all of the schematics for
the register files. (D.1. 536 at 10). In other words, the testimony to which Plaintiff objects is that
of the engineer and, therefore, Dr. Ivey's purported reliance on this testimony. Since Dr. Ivey
did, in fact, rely on more than just this engineer's testimony, it seems to me that Plaintiffs
objection goes to whether Dr. lvey's conclusions are correct, not whether they are reliable. This
is not a case, as Plaintiff suggests, where the expert performed no independent analysis of his
own. (D.I. 434 at 22).
Plaintiff next argues that Dr. lvey's anticipation opinion is "conclusory" in nature. (D.1.
434 at 22). Plaintiff asserts that Dr. Ivey did not perform an element-by-element analysis
showing that the P6 practices every claim limitation. (Id.). Plaintiff further asserts that Dr.
lvey's failure to identify the circuits he relies on and the amount of contention in those circuits
renders his opinion unreliable. (Id.). Defendant counters by pointing to "a detailed claim chart

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with a limitation-by-limitation analysis" provided by Dr. Ivey as well as evidence in the record
that the circuit Dr. Ivey relied on is representative of the topology ofregister files in general.
(D.I. 506 at 17). Plaintiff again fails to respond to Defendant's rebuttal. Therefore, I do not
think Plaintiff has shown that Dr. Ivey's opinion is unreliable as conclusory.
Finally, Plaintiff argues that Dr. Ivey's obviousness opinions as to claim 19 are unreliable
and unhelpful because his opinions are conclusory. (D.I. 434 at 25). Plaintiff further argues that
Dr. Ivey should be precluded from testifying as to obviousness of any other independent claims
because he only opined on obviousness as to claim 19. (Id.). I have reviewed Defendant's
citations to Dr. Ivey's report and claim charts and I disagree with Plaintiffs assertion that his
opinions are conclusory. (D.I. 506 at 23). Furthermore, Dr. Ivey opines on obviousness in view
of the P6 at least with respect to independent claims 1, 12, and 19, in contrast with Plaintiffs
assertions to the contrary. (D.I. 509-1 at 352-53, 382, 406). I disagree with Plaintiffs assertion
that Dr. Ivey's opinions on obviousness, which appear to be far more comprehensive than
Plaintiff alleges, are unreliable or unhelpful.
For these reasons, I will deny Plaintiffs Motion to Exclude Testimony of Peter Ivey
Regarding Invalidity Based on the Pentium Pro.
B.

Motion for Summary Judgment

"The court shall grant summary judgment ifthe movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.

R. Civ. P. 56(a). When determining whether a genuine issue of material fact exists, the court
must view the evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v.

Potter, 476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that
4

a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,
477 U.S. 242, 247--49 (1986).
Plaintiff argues that Defendant has not produced sufficient evidence to create a dispute of
material fact about whether the P6 anticipates the asserted claims. (D.I. 434 at 17). Specifically,
Plaintiff argues that Defendant has not produced evidence that the P6's RSDPC register file
circuits meet the delay and simultaneous activation limitations of the asserted claims. (Id.).
Plaintiff also argues that Defendant has put forward a second theory of anticipation that another,
unidentified circuit in the P6 anticipates that is both untimely and unsupported by evidence.
(Id.).

As an initial matter, I reject Plaintiffs attempt to reach summary judgment on the basis
that this anticipation theory was not timely disclosed. Plaintiff contends that Dr. Ivey's theory
that "some unidentified register file circuits" in the P6 product have contention, and, therefore,
anticipate the claims of the '547 patent, is untimely. (D.I. 434at*14). Plaintiff fails to disclose,
however, when it was first put on notice of this purportedly new theory. Defendant has pointed
to all of its invalidity contentions, Dr. Ivey's opening expert report, and Plaintiffs responses to
Defendant's invalidity contentions as evidence that Plaintiff has been on notice of this
anticipation theory since November 2015. (D.I. 506 at 13-14).
As to the merits of Defendant's anticipation defense, Plaintiff has presented evidence and
argument only as to whether the P6 includes "contention." There appears to be some dispute
between the parties as to what "contention" means, with Defendant using the term to be
synonymous with "simultaneous activation" and Plaintiff arguing that "contention" is equivalent
to "relative delay in the arrival time oftwo signals." (D.I. 648 at 59:1-61:16). "Contention"
does not appear in any of the claims and it is not a term that I have construed. I have, however,
5

construed the term "delay" to mean "a circuit element that delays the clock signal to the
precharge transistor." (Civ. Act. No. 10-610-RGA, D.I. 148 at 11). Plaintiffs only argument that
the P6 does not anticipate the "delay" limitation is based on its belief that the claims that include
only the "delay" limitation but not the "simultaneous activation" limitation necessarily also
include "contention." Nothing in the claim language or in my previous claim construction
supports Plaintiffs argument that a "relative delay in arrival time of two signals" is required by
the "delay" limitation. Therefore, Plaintiff's motion is denied as to claims 12-14 and 16, which
require only "delay" and not "simultaneous activation."
As to the asserted claims requiring "simultaneous activation," Defendant has pointed to
testimony from an engineer who worked on the P6, as well as from Dr. Ivey, both of whom opine
that the P6 meets the "simultaneous activation" limitation. (D.I. 506 at 11-12). Dr. Ivey relied
on schematics and information provided by engineers and designers who worked on the product.
(Id.). This is sufficient to create a genuine dispute of material fact as to whether the P6

anticipates claims 1-7 and 18-21. Plaintiffs objections appear to be about the weight of the
evidence, a topic appropriate for cross-examination rather than summary judgment. Therefore,
Plaintiffs motion is denied as to all asserted claims.

Entered this

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day of April, 201 7.