SimpleAir, Inc. v. AWS Convergence Technologies, Inc. et al

Filing 520

SUPPLEMENTAL ORDER re 507 ORDER and 348 SEALED MOTION to exclude certain expert opinions of Defendant Apple's expert Dr. Stephen Wicker filed by SimpleAir, Inc.. Signed by Judge Michael H. Schneider on 4/4/2012. (mhs1, ) Modified on 4/5/2012 (sm, ).

United States District Court
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

SIMPLEAIR, INC.
v.
AWS CONVERGENCE
TECHNOLOGIES, INC., ET AL.

§
§
§
§
§
§

Case No. 2:09-cv-289

SUPPLEMENTAL ORDER ON SIMPLEAIR’S MOTION TO EXCLUDE
CERTAIN OPNIONS OF DR. STEPHEN WICKER
In preparation for the trial in this case, Plaintiff filed its Daubert Motion to Exclude
Certain Opinions of Dr. Stephen Wicker (Doc. No. 348). The Court recently issued an order
DENYING the motion (Doc. No. 507). The Court now issues this supplemental order to clarify
its ruling.
Plaintiff seeks to exclude portions of Dr. Wicker’s testimony on the basis that his opinion
contradicts the Court’s Markman order. Specifically, Plaintiff argues that Dr. Wicker improperly
equates a “data channel” with a mere network connection, such as a connection to the Internet.
Apple responds that Dr. Wicker’s report and deposition testimony correctly applies the Court’s
construction. Instead, Apple insists that Plaintiff has lifted Dr. Wicker’s deposition testimony out
of context. Apple cites to several examples of Dr. Wicker’s testimony that are consistent with the
Court’s construction.
As previously ruled, the motion is DENIED. The Court, in its Markman opinion,
construed “data channel” to mean “one or more communication channels or paths for accessing
or viewing a category or subcategory of information that is provided by an information source
over a communications network.” All witnesses—including Dr. Wicker—must adhere to the
Court’s construction.

But the Court notes that at times during his deposition, Dr. Wicker appears to deviate
from the Court’s construction, or at the very least is vague about the distinction between a
connection to a network and a connection to a data channel over a network. For example, Dr.
Wicker testified that “[i]f you turn on your iPhone, you will be online to the Internet. . . . You
will then be able to communicate over a collection of paths with any website that is active and
reachable on the Internet. So there will be a data channel between . . . your iPhone . . . and any
website that’s providing data on the Internet.” Defendant clarifies through citations to other
deposition excerpts that Dr. Wicker’s opinion is that a data channel is a connection “over the
Internet extending from the device all the way to the source of the notification.” Def.’s Resp.
. Doc. No. 380 at 2.
Accordingly, Dr. Wicker will be allowed to testify regarding this portion of his opinion.
But Dr. Wicker will not be allowed to testify in a manner suggesting that a mere network
connection is a data channel or otherwise misleads or confuses the jury on the construction of the
term “data channel.”
It is SO ORDERED.
SIGNED this 4th day of April, 2012.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE