Case 2:16-cv-00695-RWS-RSP Document 69 Filed 10/15/23 Page 1 of 5 PageID #: 1371
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`ALACRITECH, INC.,
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`Plaintiff,
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`Defendants,
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`2:16-cv-00695-RWS-RSP
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`JURY TRIAL DEMANDED
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`v.
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`DELL INC.,
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`and
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`INTEL CORPORATION, et al.,
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`Intervenors.
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`ALACRITECH’S NOTICE OF MORNING DISPUTES FOR OCTOBER 16, 2023
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`Case 2:16-cv-00695-RWS-RSP Document 69 Filed 10/15/23 Page 2 of 5 PageID #: 1372
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`I.
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`Intel’s Improper Product to Product Comparisons
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`Alacritech brought a Daubert motion seeking to exclude Intel’s expert Dr. Heegard’s
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`improper comparison of Alacritech’s commercial TOE technology to the accused RSC products.
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`Dkt. 633 at 3-4; Dkt. 699 at 3-5; Dkt. 718 at 1-2; Dkt. 748 at 1-2. Judge Payne agreed, finding
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`that such opinions would be unhelpful, confusing, and misleading to the jury and precluding Dr.
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`Heegard from offering them. Dkt. 875 at 7-8, 11-12. Yet Defendants’ opening demonstratives
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`appear to argue to raise the same argument,1 repackaged as a distinction based on “control” that
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`solely appears in the portions of Dr. Heegard’s report comparing TOE to RSC. DDX 1.27-31;
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`Dkt. 633-1 at ¶¶ 173, 221; Dkt. 875 at 7 (identifying Sections X.B.1 and XI.B.2.e as containing
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`the improper product-to-product comparison). Intel’s apparent effort to end-run Judge Payne’s
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`ruling by indirectly comparing TOE and RSC should be excluded for the same reasons.
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`II.
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`Irrelevant and Highly Prejudicial Argument on Intel Prior Art
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`The only cognizable purpose in Defendants’ DDX-1.25 for disclosing the timing of Intel’s
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`development and sales of its NICs starting from the 1990s is to improperly suggest that Intel’s own
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`products are prior art to Alacritech’s asserted patents, which is barred by Intel’s own stipulation
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`and the Court’s clarification of its ruling. Dkt. 884 at 20 (Part E.15) (“Intel is not arguing in this
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`case that any Intel products, prototypes, or documents render invalid any of the Asserted Claims
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`of the Asserted Patents.”); Hearing Tr. Sept. 28, 2023 at 118:23-119:2 (“Well, I’m going to deny
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`MIL No. 2 for the reason that I think its scope is too broad, but I will note that if the Defendants
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`imply that this earlier art invalidates the Plaintiff’s patents, then that is objectionable.”). The
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`accused technology in this case is RSC, which Intel did not incorporate into its NICs until
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`1 Alacritech raised its concerns at the parties’ meet and confer, but Intel refused to
`divulge how it intended to use the slides.
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`2
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`Case 2:16-cv-00695-RWS-RSP Document 69 Filed 10/15/23 Page 3 of 5 PageID #: 1373
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`2009. Any implication that Intel developed RSC or incorporated it in its products earlier than
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`2009—but especially before the October 1997 priority date of the asserted patents—is manifestly
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`prejudicial and will mislead the jury into believing that Alacritech’s asserted patents are invalid
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`based on Intel’s own NICs and that Intel was selling NICs with the accused RSC functionality
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`before it actually did so.
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`Alacritech raised its concerns at the parties’ meet and confer, but Intel refused to divulge
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`how it intended to use the slides. Indeed, DDX-1.25 provides no such information or otherwise
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`clarifies to the jury that Intel is not referring to any NICs with the accused functionality. On its
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`face, DDX-1.25 would only serve to mislead the jury in a manner that Intel already represented it
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`would not do and that the Court expressly warned against.
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`Dated: October 16, 2023
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`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
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`/s/ Brian E. Mack
`joepaunovich@quinnemanuel.com
`California State Bar No. 228222
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017
`Telephone: (213) 443-3000
`Facsimile: (213) 443-3100
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`Brian E. Mack
`brianmack@quinnemanuel.com
`California State Bar No. 275086
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`50 California Street, 22nd Floor
`San Francisco, CA 94111
`Telephone: (415) 875-6600
`Facsimile: (415) 875-6700
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`Case 2:16-cv-00695-RWS-RSP Document 69 Filed 10/15/23 Page 4 of 5 PageID #: 1374
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`T. John Ward, Jr.
`Texas State Bar No. 00794818
`jw@wsfirm.com
`Claire Abernathy Henry
`Texas State Bar No. 24053063
`claire@wsfirm.com
`WARD & SMITH LAW FIRM
`1507 Bill Owens Parkway
`Longview, Texas 75604
`Telephone: (903) 757-6400
`Facsimile: (903) 757-2323
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`Attorneys for Plaintiff Alacritech, Inc.
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`Case 2:16-cv-00695-RWS-RSP Document 69 Filed 10/15/23 Page 5 of 5 PageID #: 1375
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with notice of the filing of this sealed document
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`via the Court’s CM/ECF system pursuant to Local Rule CV-5(a) on October 16, 2023, and a copy
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`of this sealed document, in its entirety, via electronic mail. All counsel who are not deemed to
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`have consented to electronic service are being served by U.S. first-class mail.
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`/s/ Brian E. Mack
`Brian E. Mack
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`Pursuant to Local Rule CV-5, the undersigned counsel hereby certifies that
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`authorization for filing under seal has been previously granted by the Court in the Protective
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`Order entered in this case.
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`/s/ Brian E. Mack
`Brian E. Mack
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`5
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