D&M Holdings, Inc., et al. v. Sonos, Inc.
MEMORANDUM ORDER: The Motion to Strike (D.I. 187 ) is DENIED. Signed by Judge Richard G. Andrews on 2/6/2018. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
D&M HOLDINGS, INC., et al.,
Civil Action No. 16-141-RGA
Plaintiffs moved to strike various portions of the expert opinions of two of Defendant's
expert witnesses. (D.I. 187). The briefing adequately sets forth the arguments. (D.I. 188, 225,
246). There is no need for oral argument.
Defendant's damages expert is Michael Tate. Plaintiffs move to exclude his opinion on
what the royalty base should be (in relation to the '294 patent). Plaintiffs argue Mr. Tate bases
his opinions on his own conclusions about which of Defendant's products are infringing. Mr.
Tate is a damages expert. He will not be allowed to render opinions at trial on which products
infringe and which do not. That is a question for technical experts. If Defendant's technical
expert offers opinions that provide a factual basis for concluding that some of Defendant's
products infringe and others do not, Mr. Tate will be allowed to testify consistent with the
opinions. In particular, if Defendant's technical expert testifies that there can be no infringement
unless there are at least four of Defendant's products, Mr. Tate may have a basis for his
calculation of a royalty base based on that assumption. In any event, I do not view this issue as a
Daubert issue. I view it as a relevance issue, and I will rule on objections based on it, as
necessary, at trial. On this issue, the motion to strike is DENIED.
Plaintiffs state that Mr. Tate has offered opinions on copying. Defendant counters that
Mr. Tate "will not provide an opinion that D&M copied Sonos in this case." (D.I. 225, p.8).
Defendant adds a further paragraph in its briefing after making the above representation. I am
not sure what its point in the further paragraph is, even though I accept literally what it says,
which is, the parties have "similar technology" and that this may be relevant to the so-called
KPMG study. I cannot at this point tell what is relevant to what, and I do not see the need to
strike any of Mr. Tate's opinions that include the word "copy" or some variant thereof.
Nevertheless, absent my express permission, Mr. Tate is not to testify to copying or to imply
copying during his trial testimony. 1 On this issue, the motion to strike is DISMISSED as moot
in light of Defendant's representation.
Plaintiffs state that Dr. Kevin Almeroth, Defendant's technical expert, has offered
opinions based on his claim constructions of terms that would otherwise be afforded their plain
meaning. These arguments relate to the "group" (D.I. 188, pp. 12-13) or "zone" (D.I. 225, p.13)
terms meaning a "virtual device" and to the "device control signal." On "group" or "zone,"
Defendant's response makes clear that Dr. Almeroth has done claim construction. Dr. Almeroth
cites the specification and prosecution history as providing a basis for his meanings. (See id, pp.
13-14). This is claim construction. See EMC Corp. v. Pure Storage, Inc., 2016 WL 775742, *34 (D.Del. Feb. 25, 2016). On the "device control signal," Defendant says Dr. Almeroth is not
using a claim construction that I already rejected, as stated by Plaintiffs. Instead, he is doing
claim construction on "providing." (D.I. 225, p.16). Plaintiffs dispute Defendant's assertion that
I do not see testimony about "similar technology" as implying copying, but Defendant needs to exercise
caution, because ifl have to declare a mistrial (or later grant a new trial) because of Mr. Tate's testimony, Defendant
would be required to pay the costs of a retrial.
Dr. Almeroth is accepting the Court's construction on "device control signal." The parties agree
that my claim construction relevant to "device control signal" (D.I. 137, pp. 21-23; D.I. 141, p.4)
means that, in order to meet the claims, device control signals must be provided to at least two
devices, one of which can be the group leader. (D.I. 188, p.13; D.I. 225, p.15; D.I. 246, p.9).
The parties cite a limited number of paragraphs in Dr. Almeroth' s rebuttal report for their
arguments that he did or did not follow the claim construction. (D.I. 188, p.13, citing D.I. 189-1,
Exh. 5, if 278; D.I. 225, p.15, citing D.I. 189-1, Exh. 5, ifif277-79; D.I. 246, p.8, citing D.I. 189-1,
Exh. 5, if 275).
Dr. Almeroth cannot do claim construction. Only the court can. And, as ordered at the
recent oral argument, now that these claim construction disputes have been identified, I have set
a briefing schedule (D.I. 273), and I will resolve the disputes. Thus, I will STRIKE the two
identified claim constructions (i.e., "group"/"zone" and "providing"). Whether I strike any other
opinions will depend on what I do by way of claim construction. If I reach the same conclusions
that Dr. Almeroth reached, presumably his substantive testimony will remain. Ifl reach different
conclusions, he will not be allowed to provide testimony inconsistent with those opinions. When
I have done claim construction, the parties should promptly submit a joint status report advising
how it impacts Dr. Almeroth's opinions.
As noted, the parties have cited to four paragraphs (D.I. 189-1, Exh. 5, ifif 275, 277-79) in
support of their arguments that Dr. Almeroth is, or is not, being consistent with what I have
already done in claim construction. In particular, the parties dispute whether Dr. Almeroth has
been faithful to the claim construction for "device control signal." I do not think Dr. Almeroth's
report is contrary to my claim construction to date, but I do note that those paragraphs,
particularly if277, contain substantial additional claim construction, which is being addressed in
the supplemental briefing. (E.g., D.I. 280). Thus, while some of what is in the four paragraphs
may be objectionable, it is not objectionable for failure to follow the claim construction to date.
The last issue raised relates to Dr. Almeroth's reliance on information provided to him by
a Sonos employee named Nick Millington. (D.I. 188, p.14). Plaintiffs state that the information
is not sufficiently described by Dr. Almeroth. In their opening brief, Plaintiffs cite twenty-four
paragraphs of his expert report as examples, but with no real analysis other than stating that it is
insufficient for him to say his opinions are "based on" conversations with Mr. Millington. (Id.).
Plaintiffs appear to have noticed Dr. Almeroth's deposition for February 16, 2018. (D.1. 265). I
expect they will then have the opportunity to explore the bases for Dr. Almeroth's opinions.
Defendant also represents that it expects to call Mr. Millington as a trial witness. (D.I. 225,
p.20). Defendant cites the same twenty-four paragraphs, but actually quote the first of them in
full in its brief. (Id., p.17). The quoted paragraph discloses the subject matter of the
conversation sufficiently. Perhaps Plaintiffs recognize this, as, in the reply brief, Plaintiffs'
string cite is reduced to eleven of the previously cited twenty-four paragraphs, and does not
include the one that Defendant quoted in full. (D.I. 246, p.9). In the reply brief, Plaintiffs choose
to highlight two of the now-eleven paragraphs. One of the
473, states, "[B]ased on my
review of Sonos's internal documents and source code as well as my discussions with Mr.
Millington, it is my understanding that a Sonos System does not use 'embedded metadata' for
any audio content received from a third-party music service." (D.I. 189-1, Exh. 5, p.194). I do
not see any problem here. It is pretty clear what Mr. Millington told Dr. Almeroth. If Plaintiffs
want to cross-examine Mr. Millington or Dr. Almeroth or both on this paragraph, they know
what to ask, either at deposition or at trial. I do not see improper reliance on hearsay evidence. 2
Thus, on this last issue, the motion to strike is DENIED.
IT IS SO ORDERED this
_/g_ day of February 2018.
In the reply brief, Plaintiffs make additional arguments not made in the opening brief, stating that the
source code and/or internal documentation is insufficiently identified, and seeking alternative relief of another
deposition of Mr. Millington. (D.1. 246, pp.9-10). Reply briefs are not the place to be making new arguments.
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