Case 2:16-cv-00695-RWS-RSP Document 97 Filed 10/18/23 Page 1 of 5 PageID #: 1968
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`ALACRITECH, INC.,
`
`
`
`
`
`Plaintiff,
`
`Defendants,
`
`
`2:16-cv-00695-RWS-RSP
`
`
`JURY TRIAL DEMANDED
`
`v.
`
`DELL INC.,
`
`and
`
`INTEL CORPORATION, et al.,
`
`Intervenors.
`
`
`
`ALACRITECH’S NOTICE OF MORNING DISPUTE FOR OCTOBER 19, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 2:16-cv-00695-RWS-RSP Document 97 Filed 10/18/23 Page 2 of 5 PageID #: 1969
`
`
`
`I.
`
`Improper Reference To “Toe Patents” In Violation Of Mil #4 And Request For
`Curative Instruction
`
`At the Pretrial Hearing held before the Honorable Roy S. Payne, Defendants’ counsel
`
`“committed” to Alacritech and the Court that it would not call or otherwise label the asserted
`
`patents “stateful patents” or “TOE patents,” acknowledging that would be inappropriate:
`
`[W]e do not intend to go to trial before the jury and say these
`are the stateful patents, and label them, these are the stateful
`patents… We don't think that's appropriate to try to do that in
`that way…. We’re not going to try to shortcut it by giving the
`patents a label and then saying we don't infringe the label.
`
` …
`
`
`
`
`[W]e’ll commit that we won't do that with this term ‘stateful,’
`nor will we call them the TOE patents.
`
`
`Ex. A (9/28 Pretrial Hearing Tr.) at 128:24-129:9, 130:13-15. Based on this representation, the
`
`this Court denied Alacritech’s MIL No. 4 To Preclude Evidence Or Argument Characterizing The
`
`Asserted Patents As Covering Or Claiming Only Stateful Offloads Such As TOE.
`
`Defendants have now violated that commitment—multiple times. For example, in his
`
`questioning of Alacritech’s damages expert, Mr. Gunderson, Dell’s counsel referred to the asserted
`
`patents as “TOE patents that they now claim are RSC”: “Q. And then he recites these alleged TOE
`
`patents that they now claim are RSC, correct? He recites a clause from them, fair? A. He's
`
`reciting a clause. I don't know about all the rest of the stuff you said.” Ex. B (10/18 Rough Trial
`
`Tr.) at 643:4-8 (emphasis added). Similarly, Intel’s counsel has also asked questions referring to
`
`the ”TOE patents… here in this case.” Ex. C (10/17 Trial Tr.) at 366:16-20 (emphasis added).
`
`Moreover, Intel’s corporate representative, Mr. Labatte, repeatedly testified that “I understand
`
`those three [asserted] patents are TCP Offload patents.” Id. at 740:23-741:2 (emphasis added);
`
`see also id. at 789:15-21 (“this was the ’205 patent that you highlighted that was in 2006. And,
`
`again, I just need to clarify that to me, that's TCP Offload.”) (emphasis added).
`
`1
`
`

`

`Case 2:16-cv-00695-RWS-RSP Document 97 Filed 10/18/23 Page 3 of 5 PageID #: 1970
`
`
`
`Alacritech respectfully requests that the Court provide the following curative instruction in
`
`light of the repeated improper arguments:
`
`“You may have heard the patents asserted in this case (the ’205,
`’880, and ’948 patents) referred to as ‘TOE patents’. That is not the
`name of these patents and it is up to you, the jury, to decide the scope
`of the patents, including whether they cover the accused Receive
`Side Coalescing feature. Please remember that the only correct
`comparison is between the accused products and the language of the
`claim itself. You should not compare the accused product with any
`other specific example set out in the patents in reaching your
`decision on infringement.”
`
`The proposed instruction is consistent with instruction this District has provided in the past. See,
`
`e.g., Personalized Media Commc’ns v. Google, Case No. 2:19-cv-00090-JRG, Trial Tr. at 945:12-
`
`20 (E.D. Tex.); id. at 951:3-12 (same). Alacritech also requests that the Court preclude Defendants
`
`from further arguing or eliciting testimony that labels the asserted patents as “TOE patents.”
`
`II.
`
`Document Cited In Dr. Jones’s Demonstratives Should Be Excluded
`
`Alacritech
`
`objects
`
`to
`
`the
`
`inclusion
`
`of
`
`the
`
`document Bates-stamped
`
`DELL_ALACRITECH_N-00008 in the demonstrative of Dr. Jones, Dell’s non-infringement
`
`expert (Ex. D), as it is a document that is not pre-admitted and is hearsay as to Dell, nor has any
`
`foundation for the document been laid by any Dell witness (nor can it, as Dell’s sole fact witness
`
`is already off the stand). Indeed, Dell withdrew this document as a proposed exhibit during the
`
`meet and confers leading up to the parties’ pre-trial conferences. They should not be able to
`
`backdoor it in now as a “demonstrative.” During tonight’s meet and confer, Dell stated that they
`
`intended to use the exhibit as a demonstrative, but the document is clearly an evidentiary document
`
`produced by Dell—not a demonstrative generated by an expert—and is being published to the jury
`
`as evidence, not to make an illustrative point. Therefore, the Court should preclude Dr. Jones from
`
`relying on the document Bates-stamped DELL_ALACRITECH_N-00008 in his demonstrative.
`
`
`
`2
`
`

`

`Case 2:16-cv-00695-RWS-RSP Document 97 Filed 10/18/23 Page 4 of 5 PageID #: 1971
`
`
`
`Dated: October 18, 2023
`
`
`
`
`
`
`
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`
`/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
`
`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
`
`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
`
`Attorneys for Plaintiff Alacritech, Inc.
`
`
`
`
`3
`
`

`

`Case 2:16-cv-00695-RWS-RSP Document 97 Filed 10/18/23 Page 5 of 5 PageID #: 1972
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that all counsel of record who are deemed to have
`
`consented to electronic service are being served with notice of the filing of this sealed document
`
`via the Court’s CM/ECF system pursuant to Local Rule CV-5(a) on October 18, 2023, and a copy
`
`of this sealed document, in its entirety, via electronic mail. All counsel who are not deemed to
`
`have consented to electronic service are being served by U.S. first-class mail.
`
`/s/ Brian E. Mack
`Brian E. Mack
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
`
`Pursuant to Local Rule CV-5, the undersigned counsel hereby certifies that
`
`authorization for filing under seal has been previously granted by the Court in the Protective
`
`Order entered in this case.
`
`
`
`/s/ Brian E. Mack
`Brian E. Mack
`
`
`
`4
`
`