Case 2:16-cv-00695-RWS-RSP Document 91 Filed 10/18/23 Page 1 of 7 PageID #: 1753
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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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`TRIAL BRIEF REGARDING LAY WITNESSES PROVIDING EXPERT TESTIMONY
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`Plaintiff Alacritech, Inc. (“Alacritech”) respectfully raises issues and concerns based on
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`recent demonstratives and trial exhibits disclosed by Defendant Intel Corporation (“Intel”) for use
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`with its forthcoming fact witnesses, Timothy Labatte and Jesse Brandeburg. Specifically, the
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`demonstratives and exhibits for Messrs. Labatte and Brandeburg indicate Intel intends to present
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`improper expert analysis and testimony through lay witnesses who were never disclosed or
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`qualified as experts in this case. Pursuant to Federal Rules of Evidence 701 and 702, however, “it
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`is an abuse of discretion to permit a witness to testify as an expert on the issues of noninfringement
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`or invalidity unless that witness is qualified as an expert in the pertinent art.” Sundance, Inc. v.
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`DeMonte Fabricating Ltd., 550 F.3d 1356, 1363 (Fed. Cir. 2008). “The prohibition of unqualified
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`witness testimony extends to the ultimate conclusions of infringement and validity as well as to
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`Case 2:16-cv-00695-RWS-RSP Document 91 Filed 10/18/23 Page 2 of 7 PageID #: 1754
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`the underlying technical questions.” HVLPO2, LLC v. Oxygen Frog, LLC, 949 F.3d 685, 689
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`(Fed. Cir. 2020).
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`Mr. Labatte. Here, Mr. Labatte’s demonstratives include magnetic posterboards that
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`appear aimed at presenting the purported operation of not just “Intel NIC[s]” but prior art “1990s
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`NIC[s]” and “Alacritech NIC[s].” See Dkt. 87 (10/18/23 Notice of Morning Disputes) at Ex. A.
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`Mr. Labatte, thus, will likely attempt to walk through a technical tutorial regarding the alleged
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`operation of such NICs and TCP/IP processing performed by such NICs while attempting to draw
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`distinctions between them, which would clearly amount to expert testimony directed to non-
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`infringement. See id. at 6 (magnetic placards corresponding to elements of the TCP/IP protocol
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`stack). Indeed, Intel’s comparisons between the accused Intel NICs and Alacritech’s TOE
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`technology is the subject of Alacritech’s concurrently filed trial brief, and is yet another attempt
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`by Intel to impress upon the jurors that Intel NICs do not infringe based on an improper comparison
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`with Alacritech NICs—as opposed to the asserted claim language. Such comparisons are hardly
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`proper for an expert witness let alone a fact witness. See Dkt. 875 (striking expert testimony that
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`compared accused products with Alacritech commercial products).
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`Mr. Brandeburg. With Mr. Brandeburg, Intel intends on using a 1400+ page technical
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`manual regarding the accused Intel Niantic NICs. Indeed, the exhibit is a version of the very same
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`technical specification used by both Alacritech’s infringement expert, Dr. Almeroth, and Intel’s
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`non-infringement expert, Dr. Heegard. Based on his prior testimony and designated deposition
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`topics in this case, Mr. Brandeburg is a Linux driver developer and likely does not have sufficient
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`personal knowledge to testify regarding a 1400+ page technical specification covering the entire
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`Niantic product. Accordingly, it is unclear what Mr. Brandeburg’s estimated 30 minutes of
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`testimony could possibly relate to other than providing improper observations and technical
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`Case 2:16-cv-00695-RWS-RSP Document 91 Filed 10/18/23 Page 3 of 7 PageID #: 1755
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`testimony directed to Intel’s non-infringement arguments and aimed at bolstering Intel’s experts.
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`At a minimum, to the extent Mr. Brandeburg is allowed to testify regarding how Niantic operates
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`(assuming Intel can establish a proper foundation for his personal knowledge), he should not be
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`allowed to testify in the negative as to how Niantic does not operate or provide any testimony
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`aimed at comparing or distinguishing Niantic’s operation from any other method of operation or
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`that relates in any way to asserted claim language or expert disputes.
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`Improper Expert Testimony From a Lay Witness Invites Reversible Error
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`Allowing Messrs. Labatte and/or Brandeburg to testify on matters reserved for experts
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`would invite reversible error. HVLPO2, 949 F.3d 685 (finding district court abused its discretion
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`by allowing expert analysis and ultimate conclusion of obviousness by lay witness). In HVLPO2,
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`for example, the Federal Circuit found the district court erred by allowing expert testimony on the
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`topic of obviousness through a lay witness not only because that witness offered the ultimate
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`conclusion of obviousness, but also because he offered “observations” on the underlying technical
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`questions. Id. at 690 (finding even a curative instruction was not enough to cure the prejudice).
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`Similarly, here, Mr. Labatte may offer improper observations regarding the TCP/IP
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`processing performed by accused products, prior art products, and Alacritech TOE products, all
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`aimed at bolstering the conclusion of Intel and its experts that Intel NICs do not infringe—again,
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`not because they purportedly do not meet one or more claim limitations but because they are
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`different from Alacritech’s TOE products. As a concrete example, claim 41 of the ’880 patent
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`requires “a flow re-assembler, disposed in the network interface.” Intel argues this was something
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`“that Alacritech was proposing go in the network interface card, and it doesn’t in the Intel
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`products.” Trial Tr., 10/17/2023, 229:6-9. Through his demonstratives, Mr. Labatte will likely
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`attempt to testify that “control” and reassembly of packets occurs on the host computer for accused
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`Intel NICs and that this is different than Alacritech NICs. Yet the actual location of packet
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`reassembly under the asserted claim language is precisely one of the disputes between the parties’
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`experts. A fact witness should not be allowed to place his thumb on the scale in favor of one expert
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`when there is a dispute regarding how a product operates as it relates to the asserted claim
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`language. For example, it would be improper for any of the lay witnesses to explain how the Intel
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`NICs purportedly process TCP/IP responses via a protocol stack, such as by handing off control
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`for session and/or network layer processing between a host computer and NIC.
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`Nor should lay witnesses be allowed to provide testimony referencing or using claim
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`language, such as communication flows, re-assembling data portions of data packets, maintaining
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`a TCP connection for communication flows, storing a TCP connection as a control block,
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`performing fast path processing, parsing received packet headers and checking for exception
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`conditions, directing packets to a protocol stack for processing, and anything relating to whether a
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`protocol stack of a host computer performs any network layer processing or any transport layer
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`processing. Reference to claim terms and concepts would risk confusing the jury into giving
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`improper weight to fact testimony as if it were that of a qualified expert.
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`Accordingly, to the extent any of Intel’s witnesses offer factual testimony regarding the
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`accused products, they should be limited to nothing more than high-level descriptions. See
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`Intellectual Ventures v. T-Mobile et al., No. 2:17-CV-577-JRG, Dkt. 335, at 122:10-11 (E.D. Tex.
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`Feb. 6, 2019) (prohibiting lay witness testimony “beyond a high level [description] of the operation
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`and functionality”). For example, in Intellectual Ventures I, LLC v. T-Mobile USA, Inc., et al, No.
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`6:13-cv-00072-RWS, Dkt. 259-1 at 109:6-21 (June 17, 2021), this Court sustained objections to
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`numerous technical questions of the type Alacritech expects to be directed to Intel’s lay witnesses,
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`including:
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`Case 2:16-cv-00695-RWS-RSP Document 91 Filed 10/18/23 Page 5 of 7 PageID #: 1757
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`- “So how does the uplink scheduler decide which phone gets to transmit at a
`particular time?” Id. at 113:25-114:4.
`- “how often did you design your uplink scheduler to make the scheduling
`competition decisions?” Id. at 115:9-14.
`- “In the uplink scheduler that you designed for Ericsson, which of the frames does
`it schedule?” Id. at 117:16-20.
`- “And can you tell me how these priority values work in the delay base scheduler
`that you designed? . . . [W]hat is the general concept of the delay base scheduler
`that you designed?” Id. at 118:12-21.
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`Neither Mr. Labatte nor Mr. Brandeburg should be allowed to provide testimony in
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`response to similar questions aimed at eliciting expert opinions and observations regarding the
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`accused RSC functionality. How RSC operates in relation to the limitations of the asserted claims
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`is purely within the province of expert opinion.
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`*
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`*
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`*
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`Despite Intel’s claim that Messrs. Labatte and Brandeburg will provide only fact testimony
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`(Dkt. 86), the demonstratives and exhibit indicate otherwise and, at a minimum, raise an
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`unacceptably high risk of testimony that will delve into improper expert analysis and observations
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`in violation of Federal Rules of Evidence 701 and 702. Accordingly, Alacritech seeks to preclude
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`such testimony outside of the presence of the jury and in advance of Intel’s trial presentation,
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`which would require Alacritech potentially “having to come to the bench repetitively” and putting
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`it “in a bad light.” See Intellectual Ventures I, LLC v. T-Mobile USA, Inc., et al, No. 6:13-cv-
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`00072-RWS, Dkt. 259-1 at 109:6-21 (June 17, 2021).
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`Case 2:16-cv-00695-RWS-RSP Document 91 Filed 10/18/23 Page 6 of 7 PageID #: 1758
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`Dated: October 18, 2023
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`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
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`/s/ Brian E. Mack
`Joe Paunovich
`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 91 Filed 10/18/23 Page 7 of 7 PageID #: 1759
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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 18, 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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`7
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