Case 2:16-cv-00695-RWS-RSP Document 78 Filed 10/16/23 Page 1 of 5 PageID #: 1500
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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 17, 2023
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`Case 2:16-cv-00695-RWS-RSP Document 78 Filed 10/16/23 Page 2 of 5 PageID #: 1501
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`I.
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`Defendants’ Deposition Designations For Mr. Blackborrow Are Precluded By MILs,
`Irrelevant, And Highly Prejudicial
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`Defendants’ deposition designations for Mr. Blackborrow at 127:8-15, 127:25-128:4, and
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`128:20-129:4 (Ex. A) are related to Alacritech’s assessment of Intel’s products and technical
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`specifications and improperly seek to re-litigate Defendants’ dropped derivation defense, which is
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`already barred by Agreed MIL No. 1 (Dkt. 796 at 1) and Alacritech’s MIL No. 1. Dkt. 876 at 1.
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`Indeed, Defendants’ invalidity expert, Dr. Stephen Wicker, already dropped its derivation defense
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`prior to his deposition and during at least one of the pre-trial conferences, Intel made express
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`representations to Judge Payne that Intel was “not going to suggest that there was derivation” and
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`“not going to suggest they took anything from anyone.” Ex. B (Sept. 28, 2023 PTC Hrg. Tr. at
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`111:18-19). But these designations have no other purpose except that. As Judge Payne correctly
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`observed, such subject matter has no relevance to the claims or defenses in this case, including
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`Alacritech’s willfulness allegation. Id. at 111:2-114:10 (“I don’t see a basis in the argument to
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`deny MIL No. 1.”). Allowing in these deposition designations will be highly prejudicial to
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`Alacritech, as it will very likely confuse the jury and cause them to improperly believe that
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`Alacritech’s awareness of Intel’s products renders the accused products non-infringed and/or
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`Alacritech’s patents invalid.
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`II.
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`Defendants’ Deposition Designations For Mr. Darryl Starr Should Also Be
`Precluded By MILs, Are Irrelevant, And Highly Prejudicial
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`Defendants’ deposition designations for Mr. Starr at 84:9-10, 84:13-20, 85:4-5, 85:14-15,
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`85:18-22, 85:25-86:2, 86:4-7, 86:10-14, 92:11-14, and 92:21 should also be barred for the same
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`reasons above, as it also discusses Alacritech’s awareness of Intel’s patents and product literature
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`and attempts to re-tread their dropped derivation defense. See Agreed MIL No. 1 (Dkt. 796 at 1);
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`Alacritech’s MIL No. 1 (Dkt. 876 at 1). But these deposition designations are even more
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`egregious, as they further discuss whether the Intel patents or product literature described or
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`Case 2:16-cv-00695-RWS-RSP Document 78 Filed 10/16/23 Page 3 of 5 PageID #: 1502
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`disclosed technology that Alacritech was using in its own products—the very subject matter of
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`comparing RSC to TOE that Judge Payne already precluded Intel’s non-infringement expert, Dr.
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`Heegard, from testifying on. Dkt. 875 at 7-8 (finding that “those opinions will not help the jury
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`understand whether the accused products include each and every limitation recited in the asserted
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`claims” and “any marginal probative value … is substantially outweighed by a danger of confusing
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`the issues and misleading the jury”). The Court should do the same here and preclude Defendants
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`from playing deposition designations on precluded subject matter.
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`III. Defendants’ Additional Deposition Designations for Mr. Blackborrow Are
`Irrelevant and Highly Prejudicial
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`Defendants’ deposition designation for Mr. Blackborrow at 124:9-13 (Ex. A) related to
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`whether Alacritech invented RSC is irrelevant and highly prejudicial, as Mr. Blackborrow is not
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`an inventor on the asserted patents and therefore should be excluded under FRE 701. Any
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`probative value is substantially outweighed by the prejudice of soliciting non-expert, speculative
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`testimony.
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`IV. Defendants’ Deposition Designations for Mr. Higgen Violate Agreed MIL No. 11
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`Defendants blatantly disregard Agreed MIL No. 11, which precludes the introduction of
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`“evidence, testimony, or argument referring to any other person or entity in disparaging ways, such
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`as . . . ‘copying’ or any similar terms.” (Dkt. 796 at 2). Here, Defendants seek to illicit testimony
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`from a former Alacritech employee on whether he had “any reason to believe that Intel ever copied
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`anything from Alacritech[.]” Ex. D [Higgen Dep.] at 103: 11-15, 17, 19-20, 22.
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`Case 2:16-cv-00695-RWS-RSP Document 78 Filed 10/16/23 Page 4 of 5 PageID #: 1503
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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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`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 78 Filed 10/16/23 Page 5 of 5 PageID #: 1504
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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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`4
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