Yeti Coolers, LLC v. RTIC Coolers, LLC
ORDER GRANTING 247 Sealed Motion to Exclude (David Kazmer). Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
YETI COOLERS, LLC,
RTIC COOLERS, LLC, et al.
Before the Court is YETI’s Opposed Daubert Motion to Exclude the Report and Opinion
Testimony of David Kazmer (Dkt. No. 247), as well as RTIC’s response (Dkt. No. 308) and YETI’s
reply (Dkt. No. 333). The motion was referred to the undersigned for resolution.
David Kazmer is a tenured professor in the Department of Plastics Engineering at the
University of Massachusetts Lowell. He is a leading researcher and authority in plastic product
design and plastics manufacturing. He received his Ph.D. in Mechanical Engineering at Stanford
University, and, in addition to his academic career, he worked in private industry as a practicing
engineer. RTIC has designated Kazmer as an expert to rebut YETI’s expert Richard Crawford, who
YETI has designated to testify regarding the manners in which RTIC’s products infringe on two
patents held by YETI.
YETI’s motion raises a discreet issue:
it contends that Kazmer’s opinions rely on
constructions of patent claim terms that are different from, or inconsistent with, the constructions
that have already been adopted by the Court.1 YETI identifies three claim terms where it contends
this is an issue: “lip,” “lip configured to conceal at least a portion of the base portion of the latch,”
The Court appointed a special master to make recommendations regarding claim
construction. The special master’s report and recommendations were filed on July 12, 2016. Judge
Pitman adopted the recommendations, without objection, on September 21, 2016. See Dkt. Nos.
and “lip extending from an upper edge of the top portion.” The claim construction that has been
adopted for the first two of these terms is “plain and ordinary meaning.” The third phrase was not
construed, as neither party requested its construction. As a result, the plain and ordinary meaning
of that phrase applies as well. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en
banc). YETI contends that, under the guise of explaining the “plain and ordinary meaning” of these
terms to one skilled in the art, Kazmer has adopted his own constructions of these claim terms, and
used those—not the Court’s—to support his opinion of non-infringement. Based on this, YETI
moves to exclude these opinions under Daubert v. Merrell Dow Pharm., Inc. and FED. R. EVID. 702,
as irrelevant and unreliable. Separately, YETI argues the testimony should be excluded as unduly
prejudicial, under FED. R. EVID. 402 and 403.
RTIC responds by arguing that what Kazmer has done is perfectly appropriate, and that
“YETI appears to be shamelessly attempting to compensate for an error made by its own expert, Dr.
Crawford, who provided entirely conclusory opinions without any explanation as to his view of the
plain and ordinary meaning of the disputed claim terms.” Dkt. No. 308 at 2. The motion therefore
raises this question: when a court construes a term as having its “plain and ordinary meaning,” may
an infringement expert nevertheless offer the jury his or her view of “ how one of ordinary skill in
the art at the time of the invention would have understood those claim terms”? Id. at 2-3. RTIC
contends that Kazmer must be permitted to offer his opinions on this issue, because “the jury needs
assistance ascertaining” the meaning of the terms, given that “jurors generally do not fall in the
category of one of ordinary skill in the art at the time of the alleged invention.” Id. at 3. YETI
responds that RTIC’s argument is disingenuous, as Kazmer is not “explaining” the plain and
ordinary meaning of the terms, but instead is construing them, and construing them inconsistently
with the Court’s claim construction.
The fundamental principles applicable here are well-settled: “In a case tried to a jury, the
court has the power and obligation to construe as a matter of law the meaning of language used in
the patent claim.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995), aff’d,
517 U.S. 370 (1996). It is improper for a court to permit experts to offer different claim
constructions and then to allow the attorneys to argue the competing constructions to the jury.
CytoLogix Corp. v. Ventana Med. Sys., Inc. 424 F.3d 1168, 1172 (Fed. Cir. 2005). The court is the
final authority on the meaning of claim terms, and the jury must be instructed by the court, not the
parties or their experts, on those meanings.
See also, MediaTek, Inc. v. Freescale
Semiconductor, Inc., 2014 WL 971765 at *2 (N. D. Cal. March 5, 2014). As the district judge in
“district courts may engage in a rolling claim construction, in which the court revisits
and alters its interpretation of the claim terms as its understanding of the technology
evolves.” Pressure Products Medical Supplies, Inc. v. Greatbatch Ltd., 599 F.3d
1308, 1316 (Fed. Cir. 2010). Accordingly, the final determination of the construction
of any claim occurs at the close of trial and manifests itself in the form of jury
Id. “Whether any evidence as to a term’s plain and ordinary meaning is admissible must be
considered in the context of the issues to be tried.” Apple, Inc. v. Samsung Elec. Co., Ltd., 2014 WL
660857 at *3 (N.D. Cal. Fed. 20, 2014).
In this instance, RTIC’s attempt to have Kazmer “explain” the plain and ordinary meaning
of claim terms is a rather poorly disguised attempt to offer the jury constructions different from the
Court’s. His opinions would confuse the jury and usurp the Court’s responsibility to instruct the jury
regarding the meaning of the patents’ terms. For example, the Court has construed the term “lip”
to have its plain and ordinary meaning. Kazmer proposes to “explain” to the jury that, to one skilled
in the art addressed by the patents,2 “lip” actually means “the forward-most edge that presents itself
in the context of its usage: to the user regarding concealment of the base of the handle, and to the
latch regarding control of the angle á2 as shown in the left figure of Kazmer-Figure 5.” Dkt. No.
245-4 at ¶ 51. While, by fiat, Kazmer says this is what one “skilled in the art” would understand
“lip” to mean, he never offers any reasonable explanation for why such a complicated understanding
of that term would be the meaning a person trained in mechanical engineering for two or four years
would give the word “lip.” And it is not a coincidence that this overly complex definition just
happens to support Kazmer’s conclusion that RTIC’s latch does not infringe the claims of the patent.
With regard to the phrase “lip configured to conceal at least a portion of the base portion of
the latch,” the attempted manipulation is even more obvious. Here, Kazmer rather amazingly plans
to explain to the jury that the phrase has the meaning RTIC proposed during claim construction—a
definition the Court rejected. The parties proposed competing constructions of the phrase at the
Markman stage. YETI’s proposed construction was that the phrase have its “plain and ordinary
meaning,” or, alternatively, if any construction was deemed necessary, “configured to hide at least
a portion of the base portion of the latch.” Dkt. No. 109 at 3. RTIC, on the other hand, offered the
proposed construction “configured to hide at least a portion of the base of the latch when viewed
from the front.” Id. (emphasis added). To be clear, the point of RTIC’s proposal was to add the
Both parties have used the same skill level for these purposes: “a person having a two-or
four-year degree in a technical field such as mechanical engineering, or two to three years of
experience in the design, development, and testing of mechanical structures or devices.” See, e.g.,
Dkt. No. 245-4 at ¶ 17.
phrase “when viewed from the front” into the claim term. The special master rejected this proposal,
and recommended the term be given its plain and ordinary meaning. Id. Judge Pitman adopted that
recommendation. Dkt. No. 116. Despite this, Kazmer states in his rebuttal report that “one of
ordinary skill in the art viewing the asserted patents would understand that the concealment of the
base of the latch when viewed from the front is provided by designing the lip to descend below the
top surface of the base of the latch.” Id. at ¶ 65 (emphasis added). That is, despite the Court having
already rejected it, Kazmer proposes to add “when viewed from the front” right back into his
definition at trial, by claiming that “one skilled in the art” would understand it that way. This is a
blatant attempt to “back door” RTIC’s rejected claim construction into the trial, and is wholly
With regard to the last phrase—“lip extending from an upper edge of the top portion”—the
situation is similar. This phrase is not one that either party requested be construed by the Court. By
seeking to have an expert testify to the meaning of a claim it did not raise as needing construction
by the Court, it is arguable that RTIC is trying to avoid the requirements of the detailed scheduling
order in this case. That order required RTIC to submit its claim chart by January 25, 2016, for the
‘819 patent, and February 22, 2016 for any other patent. Dkt. No. 35. RTIC never listed the phrase
at issue in either chart. Given this, having its expert offer an opinion months after the deadline for
disclosing disputed terms, in which he opines that the plain and ordinary meaning of the phrase
actually includes one more word, would seem to violate the scheduling order. See MediaTek, 2014
WL 971765 at *5 (excluding expert’s “plain and ordinary meaning” testimony on claim term not
disclosed as needing construction by date required by local rule). Moreover, Kazmer’s proffered
opinion goes beyond explaining the meaning of the phrase, and attempts to argue a construction of
the language. At his deposition Kazmer testified that:
And so my understanding is that one of ordinary skill in the art would read “lip
extending from an upper edge” and essentially understand that to mean a lip
extending away from an upper edge. So I have incorporated some of, you know, that
into my opinions here. Again, the claim language is what it is and one of ordinary
skill in the art might understand something different than the literal words provided
Dkt. No. 247-3 at 10-11 (emphasis added). Nowhere in his report or deposition does Kazmer
explain why a person skilled in the art would understand the “literal words” of the phrase as also
including the word “away.” It is simply not enough to merely state that “one skilled in the art”
would understand a phrase to mean something other than the plain and ordinary meaning of those
words. There must be some explanation to support such a claim, as otherwise infringement and
Markman experts would be completely unconstrained by the words of a patent.
Thus, while RTIC is correct that in appropriate circumstances case law may permit testimony
to the jury regarding the plain and ordinary meaning of a phrase as understood by one skilled in the
art, this is not an appropriate case for permitting such testimony. As the court in Apple v. Samsung
explained, “At trial, parties may ‘introduc[e] evidence as to the plain and ordinary meaning of terms
not construed by the Court to one skilled in the art,’ so long as the evidence does not amount to
‘argu[ing] claim construction to the jury.’” 2014 WL 660857 at *3 (quoting DNT LLC v. Sprint
Spectrum, LP, 2010 WL 582164 at *4 (E.D. Va., Feb. 12, 2010) and Cordis Corp. v. Boston Sci.
Corp., 561 F.3d 1319, 1337 (Fed. Cir. 2009)) (emphasis added). Here, there is little question that
RTIC is attempting to have its expert argue claim construction to the jury. Finally, even if RTIC
were to be permitted to offer evidence from its expert on the meaning of the patent to one skilled in
the art, that testimony would not be for the jury, but rather would be for the trial judge, who would
then use it to reach his final understanding of the patents’ claims for use in his instructions to the
jury. This is because, as discussed earlier, the only person who should be explaining to the jury what
the patent terms mean is the trial judge, in his instructions. MediaTek, 2014 WL 971765 at *2.
ACCORDINGLY, YETI’s Opposed Daubert Motion to Exclude the Report and Opinion
Testimony of David Kazmer (Dkt. No. 247) is GRANTED, and his opinions regarding the plain and
ordinary meaning to one skilled in the art of the terms “lip,” “lip configured to conceal at least a
portion of the base portion of the latch,” and “lip extending from an upper edge of the top portion”
are excluded from presentation to the jury.
SIGNED this 27th day of January, 2017.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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