I/P Engine, Inc. v. AOL, Inc. et al

Filing 340

MOTION to Exclude Opinions and Testimony of Keith R. Ugone by I/P Engine, Inc.. (Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
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)
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Plaintiff,
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v.
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AOL, INC. et al.,
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)
Defendants.
)
__________________________________________)
I/P ENGINE, INC.,

Civ. Action No. 2:11-cv-512

PLAINTIFF I/P ENGINE, INC.’S
MOTION TO EXCLUDE OPINIONS AND TESTIMONY OF KEITH R. UGONE
Plaintiff I/P Engine, Inc. (“I/P Engine”) moves to preclude certain unsupported expert
testimony proffered by Defendants’ damages expert, Keith Ugone, Ph.D. Dr. Stephen L. Becker,
I/P Engine’s damages expert, prepared a detailed analysis with extensive computations to
conclude a reasonable royalty for Defendants’ infringement. In response, Dr. Ugone provided
his opinion on what he thought was the appropriate measure of damages without doing a single
piece of math. Instead of using established methodologies, he used what he called a “proxy” for
doing the real thing. Dr. Ugone selected a number of lump-sum license agreements, most of
which he conceded were not comparable to the patents-in-suit, and declared that the damages in
this case should be in the same range as those non-comparable agreements.
Dr. Ugone’s opinions fail under Daubert for two reasons. First, his “proxy” methodology
is not an appropriate analytical methodology. I/P Engine can find no case law supporting such a
methodology in a patent case. Second, Dr. Ugone – who has no technical expertise whatsoever,
and who is not offered as a technical expert witness on issues of liability – extensively opines on

the technical operation of the accused systems, with no citation to any factual support.
Defendants apparently intend to elicit such technical testimony from Dr. Ugone, even though he
clearly has no expertise in that area and has testified that he is not proffering a technical opinion
in this case.
As explained in the attached Memorandum in Support hereof, Dr. Ugone’s damages
report and related opinions fail to satisfy the admissibility requirements of Federal Rule of
Evidence 702 or the Supreme Court’s directive in Daubert, and should be excluded from any
trial of this matter.
Dated: September 21, 2012

By: /s/ Jeffrey K. Sherwood
Donald C. Schultz (Virginia Bar No. 30531)
W. Ryan Snow (Virginia Bar No. 47423)
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Jeffrey K. Sherwood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
DeAnna Allen
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of September, 2012, the foregoing PLAINTIFF I/P
ENGINE, INC.’S MOTION TO EXCLUDE OPINIONS AND TESTIMONY OF KEITH
R. UGONE, was served via the Court’s CM/ECF system, on the following:

Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Jeffrey K. Sherwood

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