WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 444

MOTION for Judgment as a Matter of Law by Alcatel-Lucent USA Inc.. (Attachments: # 1 Text of Proposed Order)(Deoras, Akshay)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WI-LAN INC.,

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Plaintiff,
v.
ALCATEL-LUCENT USA INC.; et al.
Defendants.

Civil Action No. 6:10-cv-521-LED
Civil Action No. 6:13-CV-00252-LED
CONSOLIDATED CASES
JURY TRIAL DEMANDED

DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW THAT WI-LAN
IS NOT ENTITLED TO ANY DAMAGES

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I.

Introduction
The Court ruled that the opinions expressed in Mr. Jarosz’s initial expert report on

damages were inadmissible because Mr. Jarosz failed “to account for differences between WiLAN’s worldwide portfolio licenses and a license to the patents-in-suit for U.S. sales of
Defendants’ accused products.” Order at 7 (emphasis added; ECF No. 421). The Court later
struck the opinions expressed on apportionment in Mr. Jarosz’s supplemental expert report. At
trial, Mr. Jarosz testified that he did “not adjust[] for the importance of the U.S. assets of WiLAN versus its non-U.S. assets.” (Tr. at 107:2–3.) When asked why did not make the required
allocation, Mr. Jarosz responded: “I don’t know exactly how to do that.” (Id. at 108:14.)
II.

Argument
A court must grant a judgment as a matter of law must where “‘a reasonable jury would

not have a legally sufficient evidentiary basis to find for the [non-moving] party on that issue.’”
Mirror Worlds, LLC v. Apple, Inc., 784 F. Supp. 2d 703, 710 (E.D. Tex. 2011) (quoting Fed. R.
Civ. P. 50(a)), aff’d, 692 F.3d 1351 (Fed. Cir. 2012). “A court should render judgment as a
matter of law when a party has been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for the party on that issue.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 149 (2000); see also, Fed. R. Civ. P. 50(a) and (b). WiLAN bears the burden of proof as to the amount of damages. Lucent Tech., Inc. v. Gateway,
Inc., 580 F.3d 1301, 1324, 1335 (Fed. Cir. 2009); see also Transclean v. Bridgewood Servs.,
Inc., 290 F.3d 1364, 1370 (Fed. Cir. 2002). Damages cannot stand if they are supported only by
“speculation or guesswork.” Lucent, 580 F.3d at 1335; see also Integra Lifesciences I, Ltd. v.
Merck KgaA, 331 F.3d 860, 872 (Fed. Cir. 2003), vacated other grounds 545 U.S. 193 (2005).
Nor can damages be based on expert testimony that is economically unsound or that does not
pass the Daubert test for reliability. Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1315–
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18 (Fed. Cir. 2011); LaserDynamics, inc. v. Quanta Computer, Inc., 694 F.3d 51, 67 (Fed. Cir.
2012); Riles v. Shell Exploration & Prod. Co., 298 F.3d 1302, 1311–13 (Fed. Cir. 2002). As set
forth below, Wi-LAN’s damages evidence failed to support—as a matter of law—the reasonable
royalty it requests that the jury award, because it is not based on sufficiently reliable “economic
and factual predicates.” LaserDynamics, 694 F.3d at 67 (quoting Riles, 298 F.3d at 1311).
The only evidence presented to the jury regarding the value of the patents-in-suit relative
the value of its worldwide patent portfolio is Mr. Jarosz’s testimony that he does not how to
arrive at such a value. Mr. Jarosz attempted to overcome this failure of proof with testimony that
he provided inputs that would allow the jury to arrive the value on its own. (Tr. at 148:22–25.)
But Mr. Jarosz—an expert on complex patent valuation issues—clearly has the same inputs. If he
does not know how to value the patents, there is no way the jury could do so.
In addition, Wi-LAN’s evidence of the total, unapportioned value of Wi-LAN’s patents is
fatally flawed because it improperly relies on Mr. Jarosz’s analysis of prior licenses without
evidence that those licenses are comparable to a license to the patents-in-suit.
CONCLUSION
Accordingly, Wi-LAN failed to put on a necessary element of its damages claim and
Defendants are entitled to judgment that Wi-LAN is entitled to no relief.

Dated: July 10, 2013

Respectfully submitted,
By: /s/Eric H. Findlay______________
Stephen S. Korniczky (pro hac vice)
Martin R. Bader (pro hac vice)
James Geriak (pro hac vice)
SHEPPARD,MULLIN, RICHTER
&HAMPTON
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12275 El Camino Real, Suite 200
San Diego, California 92130-2006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Eric Hugh Findlay (TX Bar 00789886)
Roger Brian Craft (TX Bar 04972020)
FINDLAY CRAFT
6760 Old Jacksonville Highway
Suite 101
Tyler, Texas 75703
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANTS
HTC CORPORATION, HTC AMERICA,
INC. AND EXEDEA INC.

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Dated: July 10, 2013

Respectfully submitted,
By: /s/Akshay S. Deoras______________
Gregory S. Arovas (pro hac vice)
Robert A. Appleby (pro hac vice)
Jeanne M. Heffernan (pro hac vice)
Akshay S. Deoras (pro hac vice)
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022
Tel: [phone]
Fax: [phone]
[e-mail]
Michael E. Jones
Allen F. Gardner
POTTER MINTON PC
110 N. College, Suite 500 (75702)
P.O. Box 359
Tyler, Texas 75710
[phone]
[phone] (Facsimile)
[e-mail]
[e-mail]

ATTORNEYS FOR DEFENDANT
ALCATEL-LUCENT USA INC.

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Dated: July 10, 2013

Respectfully submitted,
/s/ Richard L. Wynne, Jr.
Bruce S. Sostek (Lead Attorney)
State Bar No. 18855700
[e-mail]
Richard L. Wynne, Jr.
State Bar No. 24003214
[e-mail]
THOMPSON & KNIGHT LLP
1722 Routh Street, Suite 1500
Dallas, Texas 75201
214.969.1700
214.969.1751 (facsimile)
ATTORNEYS FOR DEFENDANTS
ERICSSON INC.
TELEFONAKTIEBOLAGET LM ERICSSON
SONY MOBILE COMMUNICATIONS AB
and
SONY MOBILE COMMUNICATIONS
(USA) INC.

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing document was served on all counsel
of record on July 10, 2013, by electronic mail.
/s/ Martin R. Bader
Martin R. Bader

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