Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 906

MOTION to Strike Defendant's Daubert Motion to Preclude Expert Testimony of Jonathan H. Bari by Adobe Systems Incorporated, Amazon.com Inc., Citigroup Inc., Google Inc., J.C. Penney Company, Inc., Staples, Inc., The Go Daddy Group, Inc., Yahoo! Inc., YouTube, LLC. (Attachments: # 1 Affidavit of Aaron Huang, # 2 Exhibit A to Huang Decl, # 3 Exhibit B to Huang Decl, # 4 Text of Proposed Order)(Reines, Edward)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION

EOLAS TECHNOLOGIES
INCORPORATED,
PLAINTIFF,
v.
ADOBE SYSTEMS INC. et al.,
DEFENDANTS.

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Civil Action No. 6:09-CV-446-LED

JURY TRIAL DEMANDED

DEFENDANTS’ DAUBERT MOTION TO PRECLUDE
EXPERT TESTIMONY OF JONATHAN H. BARI

TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1
ARGUMENT................................................................................................................................. 1
I.

LEGAL STANDARD........................................................................................................ 1

II.

MR. BARI’S TESTIMONY SHOULD BE EXCLUDED UNDER RULE 702
BECAUSE IT OFFERS ONLY ANECDOTAL CITES WITH NO
RELATIONSHIP TO THE PATENTS-IN-SUIT OR PARTIES IN THE CASE. ........... 3
A.
B.

Mr. Bari’s Testimony is Not Based on Sufficient Facts or Data. .......................... 4

C.

Mr. Bari Fails to Proffer Any Principles or Methods to Support His
Opinions................................................................................................................. 5

D.
III.

Mr. Bari’s Testimony Would Not Assist the Trier of Fact to Understand
the Evidence or to Determine a Fact at Issue in This Case.................................... 3

Mr. Bari Does Not Apply Principles and Methods Reliably to the Facts of
This Case................................................................................................................ 5

CONCLUSION.................................................................................................................. 8

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INTRODUCTION
Defendants Adobe Systems, Inc., Amazon.com, Inc., CDW, LLC, Citigroup, Inc., The
Go Daddy Group, Inc., Google, Inc., J.C. Penney Corp., Inc., Staples, Inc., Yahoo!, Inc., and
YouTube, LLC (collectively, “Defendants”) move the Court pursuant to Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), to strike the Expert
Report of Jonathan H. Bari (Ex. A,1 “Bari Report”) submitted by Plaintiff Eolas Technologies,
Inc., and to preclude the proffer of any opinion testimony from Mr. Bari and the Bari Consulting
Group based thereon.
The Bari Report does not purport to offer any opinion concerning any issue relevant to
this case. Instead, it provides summary assertions regarding the so-called “value proposition”
provided by generalized, non-specific features like “Internet advertising sales.” The report relies
entirely upon what it concedes are anecdotal citations concerning non-accused websites and third
parties unmoored to any specific party, website, or feature at issue in this case. It does not
disclose, let alone attempt to apply, any methodology to ostensibly relate those non-accused
websites and parties to those that are actually at issue in this case and, more importantly, to the
patents and facts in this case. Courts in this District as well as the Federal Circuit and Supreme
Court have repeatedly held precisely such expert testimony unrelated to the patents and facts at
issue in the case improper and must be excluded.
ARGUMENT
I.

LEGAL STANDARD
It is well-established that expert testimony is admissible only if “(1) the testimony is

based upon sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts of the

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Exhibits are to the Declaration of Aaron Y. Huang, filed concurrently herewith.

case.”

Fed. R. Evid. 702; accord Daubert, 509 U.S.at 588; Sundance, Inc. v. DeMonte

Fabricating Ltd., 550 F.3d 1356, 1360 (Fed. Cir. 2009). The testimony must “‘assist the trier of
fact to understand the evidence or to determine a fact in issue,’” and that which does not relate to
any issue in the case “‘is not relevant and, ergo, non-helpful.’” Daubert, 509 U.S. at 591
(citation omitted).
The Federal Circuit has further clarified the requirements for expert testimony in patent
cases. A “major determinant” of whether an expert should be excluded is “whether he has
justified the application of a general theory to the facts of the case.” Uniloc, USA, Inc. v.
Microsoft Corp., 632 F.3d 1292, 1316 (Fed. Cir. 2011). “‘[A]ny evidence unrelated to the
claimed invention does not support compensation for infringement but punishes beyond the
reach of the statute,’” so “[t]o be admissible, expert testimony opining on a reasonable royalty
rate must ‘carefully tie proof of damages to the claimed invention’s footprint in the market
place.’” Id. at 1316-17 (quoting ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 869 (Fed. Cir.
2010) (rejecting opinion testimony reliant upon evidence “with no relationship to the claimed
invention” and no “discernible link to the claimed technology”)); see also Lucent Techs., Inc. v.
Gateway, Inc., 580 F.3d 1301, 1331-37 (Fed. Cir. 2009).
As in the above-cited Federal Circuit cases, the Bari Report fails to meet the Rule 702
threshold requirement for admissibility because it is entirely reliant upon evidence like a survey
that mixes and matches evidence from companies and websites that are completely unrelated to
this case and fails to establish any relationship or link to the patents-in-suit.

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II.

MR. BARI’S TESTIMONY SHOULD BE EXCLUDED UNDER RULE 702
BECAUSE IT OFFERS ONLY ANECDOTAL CITES WITH NO
RELATIONSHIP TO THE PATENTS-IN-SUIT OR PARTIES IN THE CASE.
A.

Mr. Bari’s Testimony Would Not Assist the Trier of Fact to Understand the
Evidence or to Determine a Fact at Issue in This Case.

Mr. Bari does not purport to opine concerning any of the issues in the case or otherwise
to assist the jury in understanding the evidence. He does not intend to testify, for example, about
patent infringement or validity, or analyze how to determine the proper amount of damages to
assess if infringement is proven.

Instead, Mr. Bari simply offers his view of the “value

proposition” generally provided to websites by the use of certain categories of features that he
himself has constructed, such as “pan & zoom,” “product videos, “auto-complete” (or
“TypeAhead”), “Internet advertising sales,” and combinations thereof. He does not purport to
offer any opinions directed to any specific features implemented by any of the Defendants in this
case.
The Bari Report describes his assignment as follows: “Specifically, Bari Consulting
Group was tasked with providing an independent analysis in the Plaintiff’s Expert Report on the
qualitative and quantitative drivers that Eolas’s Intellectual Property may provide from a macro
perspective with regard to potentially increasing e-commerce sales and potentially decreasing ecommerce returns, for example.” Ex. A at 3. With respect to each purported feature category,
Mr. Bari then repeats essentially the same opinion: “there are various qualitative and quantitative
benefits” derived from use of these features. See, e.g., id. at 11-14, 25, 32, 46, 57-58.
This over-generalized commentary has no bearing on the specific facts and damages
issues pertaining to the asserted claims in this matter. The report does not explain, for example,
how Mr. Bari’s generalized theory concerning e-commerce relates to the patents-in-suit or the
Defendants’ accused websites. This is no surprise, given that neither Mr. Bari nor any other
expert in this matter can or will opine that the patents-in-suit claim the only manner of
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performing the “interactive” functions addressed by Mr. Bari: “1) product and service images pan and zoom (sometimes referred to as interactive images), 2) product and service videos and 3)
search suggest auto-complete (“Search Suggest”).” Ex. A at 3. Moreover, and as discussed
further below, the report admits that Mr. Bari “did not analyze whether these companies cited
have infringed on Eolas’s Intellectual Property,” including by selling or using any of the features
addressed by Bari’s report. See Ex. A at 51, n.177. This testimony does not relate to any of the
issues in this case, and is thus “non-helpful” and non-admissible. Daubert, 509 U.S. at 591.
B.

Mr. Bari’s Testimony is Not Based on Sufficient Facts or Data.

Even setting aside his failure to relate his generalized opinion concerning e-commerce to
any issue in the case, Mr. Bari’s testimony concerning e-commerce should also be excluded for
the independent reason that it is not based on sufficient facts or data. In support of his opinion,
Mr. Bari points to a selective smattering of evidence related to website retailers and companies
that are not parties to this case. But he fails to offer any indicia of the reliability of such
evidence that would in any way suggest that the sample cited is somehow representative of ecommerce retailers generally or, more importantly, Defendants’ websites.
Indeed, Mr. Bari concedes that the evidence he cites is only “anecdotal”:
Certain market research, case studies, companies and metrics which are cited in the
Plaintiff’s Expert Report are used for anecdotal purposes in terms of general e-commerce
matters and/or the use and quantifiable and/or qualifiable benefit(s) of specific
technologies/functionalities including with interactive product images, product videos
and search suggest auto-complete. Bari Consulting Group did not analyze whether these
companies cited have infringed on Eolas’s Intellectual Property.
Ex. A at 51, n.177 (emphasis added). Such anecdotal evidence is not a proper basis for expert
testimony. See U.S. Gypsum Co. v. LaFarge N. Am., 670 F. Supp. 2d 737, 745 (N.D. Ill. 2009)
(granting motion to preclude expert testimony “‘essentially based on anecdotal data with little or
no governing method of analysis’”). Moreover, despite repeated assertions of “quantitative

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benefits,” the report contains no information about how to evaluate the supposed “quantitative”
benefits of Mr. Bari’s categories of features.
These alleged facts concerning the commercial activities of selected third parties
unrelated to the patents in suit improperly risks confusing the jury and encouraging it to compute
damages based on irrelevant and incomplete information. It should be excluded because its
probative value is greatly outweighed by its prejudicial effect. See Fed. R. Evid. 703, 403.
C.

Mr. Bari Fails to Proffer Any Principles or Methods to Support His
Opinions.

Mr. Bari’s testimony should also be excluded because he fails to disclose any principles
or methods that he relied upon in reaching his conclusions.

Instead, Mr. Bari provides

unsupported, vague conclusions about the “value propositions” of various website features, and
the “qualitative and quantitative benefits” of such features, not tied to the Defendants or the
patents in suit. The only support provided for these conclusions are summary assertions. For
example, Mr. Bari simply asserts and provides no support for his opinions that the features
provide “enhanced views,” reduces friction in e-commerce, boosts conversion rates or attains
higher customer satisfaction rates. Such testimony unsupported by principles and methods
should be excluded. See Utah Med. Prods. v. Graphic Controls Corp., 350 F.3d 1376 (Fed. Cir.
2003).
D.

Mr. Bari Does Not Apply Principles and Methods Reliably to the Facts of
This Case.

Mr. Bari’s testimony should also be excluded because, even to the extent it purports to
apply an (unexpressed) principle or method, it does not reliably apply that principle or method to
the facts of this case. Indeed, as noted above, Mr. Bari does not address the facts of this case at
all. The report is instead filled with irrelevant information about third parties and various e-

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commerce activities, articles, and promotional information, unrelated to the patents-in-suit or any
of the Defendants.
As noted above, the statements in Mr. Bari’s report are not only unrelated to the
Defendants, they also are not tied to the patents-in-suit. To cite only a few examples, Mr. Bari
seeks to testify that:
•

Sales of the Top 500 retailers grew 18% in 2009

•

Design Within Reach increased online sales by 45%

•

B’s Purses’ online sales jumped by “more than 10x”

•

Beale’s Department stores attained a 20% increase in conversions

•

L.L. Bean’s web sales grew by more than 29% in 2010

•

Treadmill Doctor improved its conversion rate by 10%

•

Golfsmith recently measured a 64% lift in sales.

Mr. Bari makes no attempt to specifically apply his generic “industry” opinions purportedly
gleaned from this evidence to the business realities of any of the Defendants in the case. Indeed,
the Bari Report, prepared for this litigation, explicitly states on its first page that it is not tied to
the specific claims of the patents:
For the record, Bari Consulting Group was not tasked with reviewing how Eolas’s
Intellectual Property is allegedly used and/or infringed by each of the individual or
collective Defendants in this matter. As such, Bari Consulting Group concentrated its
analysis from a macro perspective and did not develop any patent claims’ chart analyses,
for example.
Ex. A at 3.
The only thing some Defendants have in common is that they earn revenue through
websites. But each individual Defendant has a different on-line presence. For example, Adobe
sells software products through its website Adobe.com; as there is no physical product, there is
no need for “visualization” for software products that would require “interactive” images.
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Likewise, Go-Daddy offers website hosting services; CDW sells multi-brand technology
solutions; and Staples sells office supplies. Mr. Bari’s opinions simply cannot be applied to
these very different defendants on a “mix and match” basis, and certainly cannot be done so
absent any explanation or specific application of the facts for each individual defendant.
Mr. Bari’s report also relies upon a purported “survey” of e-commerce and Internet
retailing that does not attempt to tie his resulting opinions to the patents’ claims. As Magistrate
Judge Love recently affirmed in the Fractus case, such a survey that does not limit itself to the
claimed invention is not admissible and may not be the basis for expert testimony under Rule
702. Fractus, S.A. v. Samsung et al., Civil No. 6:09-cv-203-LED-JDL, at 2-3 (E.D. Tex. April
29, 2011) (attached as Ex. B) (“Survey evidence purportedly demonstrating the value of internal
antennas not tied directly to Plaintiff’s technology confuses the issues and must be excluded.”).
Mr. Bari’s indiscriminate reliance on purported evidence about companies that are not
parties to this lawsuit, who sell products unrelated to those sold by many of the defendants
herein, and that is unrelated to the patents-in-suit, plainly contradicts the governing Federal
Circuit case-law requiring specificity in damages evidence. See, e.g., Uniloc, ResQNet, Lucent.
Those cases confirm that evidence and opinions not relating to the patents-in-suit are
inadmissible. To the contrary, Mr. Bari admits in his report that he has no idea whether these
non-party websites infringe the asserted patents. Like the expert testimony the Federal Circuit
rejected in Uniloc and ResQNet.com, Mr. Bari’s opinions are completely unhinged from the
market footprint of the claimed invention. Absent proof that these non-parties are using the
asserted patents, Mr. Bari’s opinions have no relevance to the amount of damages to be assessed
for alleged infringement of these patents, and should be excluded.

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III.

CONCLUSION
For the foregoing reasons, Mr. Bari’s testimony fails to satisfy the requirements of Rule

702 and should be excluded by the Court.
Dated: August 19, 2011

Respectfully submitted,
/s/ Edward R. Reines
Edward R. Reines
Sonal N. Mehta
Aaron Y. Huang
Andrew L. Perito
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Jennifer H. Doan
Texas Bar No. 08809050
Joshua R. Thane
Texas Bar No. 24060713
HALTOM & DOAN
6500 Summerhill Road, Suite 100
Texarkana, TX 75503
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
ATTORNEYS FOR AMAZON.COM,
INC., AND YAHOO! INC.
By: /s/ James R. Batchelder (with permission)
James R. Batchelder (pro hac vice)
[e-mail]
Sasha G. Rao (pro hac vice)
[e-mail]
Mark D. Rowland
[e-mail]
Brandon Stroy (pro hac vice)
[e-mail]
Rebecca R. Hermes (pro hac vice)
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[e-mail]
Han Xu (pro hac vice)
[e-mail]
ROPES & GRAY LLP
1900 University Avenue, 6th Floor
East Palo Alto, California 94303-2284
Telephone:[phone]
Facsimile: [phone]
Michael E. Jones (Bar No. 10929400)
[e-mail]
Allen F. Gardner (Bar No. 24043679)
[e-mail]
POTTER MINTON
A Professional Corporation
110 N. College, Suite 500
Tyler, TX 75702
Telephone:[phone]
Facsimile: [phone]
ATTORNEYS FOR GOOGLE INC.
AND YOUTUBE, LLC
/s/ Anthony S. Gabrielson (with permission)
Thomas L. Duston
[e-mail]
Julianne M. Hartzell
[e-mail]
Anthony S. Gabrielson
[e-mail]
Scott A. Sanderson
[e-mail]
Marshall, Gerstein & Borun LLP
6300 Willis Tower
233 South Wacker Drive
Chicago, IL 60606-6357
[phone]
Brian Craft
[e-mail]
Eric H. Findlay
[e-mail]
Findlay Craft, LLP
6760 Old Jacksonville Highway, Suite 101
Tyler, TX 75703
903-534-1100
ATTORNEYS FOR CDW LLC
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/s/ Jason Wolff (with permission)
David J. Healey
[e-mail]
FISH & RICHARDSON P.C.
1 Houston Center
1221 McKinney Street, Suite 2800
Houston, TX 77010
Telephone: [phone]
Facsimile: [phone]
OF COUNSEL:
Frank E. Scherkenbach
[e-mail]
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, MA 02110-1878
Telephone: [phone]
Facsimile: [phone]
Jason W. Wolff
[e-mail]
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR ADOBE SYSTEMS INC.

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/s/ Scott Fuller (with permission)
Edwin R. DeYoung (Bar No. 05673000)
[e-mail]
Roy W. Hardin (Bar No. 08968300)
[e-mail]
Roger Brian Cowie (Bar No. 00783886)
[e-mail]
M. Scott Fuller (Bar No. 24036607)
[e-mail]
Galyn Gafford (Bar No. 24040938)
[e-mail]
LOCKE LORD BISSELL & LIDDELL LLP
2200 Ross Avenue, Suite 2200
Dallas, TX 75201-6776
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR CITIGROUP INC.
/s/ Proshanto Mukherji (with permission)
Thomas M. Melsheimer (Bar No. 13922550)
[e-mail]
Neil J. McNabnay (Bar No. 24002583)
[e-mail]
Carl E. Bruce (Bar No. 24036278)
[e-mail]
FISH & RICHARDSON P.C.
1717 Main Street, Suite 5000
Dallas, TX 75201
Telephone: [phone]
Facsimile: [phone]
Proshanto Mukherji (pro hac vice)
[e-mail]
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, MA 02110-1878
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR THE GO DADDY
GROUP, INC.

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/s/ Chris Joe (with permission)
Christopher M. Joe (Bar No. 00787770)
[e-mail]
Brian Carpenter (Bar No. 03840600)
[e-mail]
Eric W. Buether (Bar No. 03316880)
[e-mail]
BUETHER JOE & CARPENTER, LLC
1700 Pacific, Suite 2390
Dallas, TX 75201
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR J.C. PENNEY CORPORATION
/s/ Mark Matuschak (with permission)
Mark G. Matuschak (pro hac vice)
[e-mail]
Donald R. Steinberg (pro hac vice)
[e-mail]
WILMER CUTLER PICKERING HALE
AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
Kate Hutchins (pro hac vice)
[e-mail]
WILMER CUTLER PICKERING HALE
AND DORR LLP
399 Park Avenue
New York, NY 10011
Telephone: [phone]
Facsimile: [phone]
Daniel V. Williams, (pro hac vice)
[e-mail]
WILMER CUTLER PICKERING HALE
AND DORR LLP
1875 Pennsylvania Avenue NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]

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Michael E. Richardson (Bar No. 24002838)
[e-mail]
BECK REDDEN & SECREST
1221 McKinney, Suite 4500
Houston, TX 77010
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR STAPLES, INC.

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CERTIFICATE OF CONFERENCE
I certify that David J. Healey attempted to contact counsel for Eolas between 7:00 and
8:00 p.m. CT on August 19, 2011 by email and telephone calls to the offices of Josh Budwin and
John Campbell, as well as to the mobile phone of Josh Budwin. Based on prior discussions and
scheduling and other case matters, Defendants understand this motion to be opposed.
Defendants remain willing to meet and confer on any issue raised in this motion once the
Plaintiffs have had the chance to study the motion and supporting exhibits in detail.

/s/ Aaron Y. Huang
Aaron Y. Huang

CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have
consented to electronic service are being served with a copy of this document via the Court’s
CM/ECF system per Local Rule CV-5(a)(3) on this 19th day of August 2011. All other counsel
of record will be served via facsimile or first class mail.

/s/ Danielle Delorio
Danielle Delorio

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