Robert Bosch, LLC v. Westport Fuel Systems Canada, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ROBERT BOSCH LLC,
Plaintiff,
v.
WESTPORT FUEL SYSTEMS
CANADA INC.,
Defendant.
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Case No. 2:23-cv-00038-JRG-RSP
MEMORANDUM ORDER
Before the Court is Defendant Westport Fuel Systems Canada Inc’s Motion to Strike
Certain Opinions of Douglas Kidder. Dkt. No. 185. Having considered the Motion, and for
the reasons discussed below, the motion to strike is GRANTED as to the identified late-
produced financial information, and is otherwise DENIED.
I. 	BACKGROUND
Bosch has filed a declaratory judgment action against Westport Fuel Systems Canada
Inc. for non-infringement of U.S. Patent Nos. 6,298,829 (“’829 Patent”) and 6,575,138
(“’138 Patent”) (together, the “asserted patents”). The asserted patents are generally directed
to a fuel injection valve for use in combustion engines. Dkt. No. 1 at 1-2. Westport
counterclaims and seeks infringement damages, based on Bosch’s CRI3 fuel injectors.
II. 	LEGAL STANDARD
An expert witness may provide opinion testimony if “(a) the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data;
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(c) the testimony is the product of reliable principles and methods; and (d) the expert has
reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702.
Rule 702 requires a district court to make a preliminary determination, when
requested, as to whether the requirements of the rule are satisfied with regard to a particular
expert’s proposed testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999);
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993). District courts are
accorded broad discretion in making Rule 702 determinations of admissibility. Kumho Tire,
526 U.S. at 152 (“the trial judge must have considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is reliable”). Although
the Fifth Circuit and other courts have identified various factors that the district court may
consider in determining whether an expert’s testimony should be admitted, the nature of the
factors that are appropriate for the court to consider is dictated by the ultimate inquiry—
whether the expert’s testimony is sufficiently reliable and relevant to be helpful to the finder
of fact and thus to warrant admission at trial. United States v. Valencia, 600 F.3d 389, 424
(5th Cir. 2010).
Importantly, in a jury trial setting, the Court’s role under Daubert is not to weigh the
expert testimony to the point of supplanting the jury’s fact-finding role; instead, the Court’s
role is limited to that of a gatekeeper, ensuring that the evidence in dispute is at least
sufficiently reliable and relevant to the issue before the jury that it is appropriate for the
jury’s consideration. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391-92 (Fed.
Cir. 2003) (applying Fifth Circuit law) (“When, as here, the parties’ experts rely on
conflicting sets of facts, it is not the role of the trial court to evaluate the correctness of facts
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underlying one expert’s testimony.”); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th
Cir. 2002) (“‘[t]he trial court’s role as gatekeeper [under Daubert] is not intended to serve
as a replacement for the adversary system.’ . . . Thus, while exercising its role as a gate-
keeper, a trial court must take care not to transform a Daubert hearing into a trial on the
merits,” quoting Fed. R. Evid. 702 advisory committee note). As the Supreme Court
explained in Daubert, 509 U.S. at 596, “Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” See Mathis v. Exxon Corp.,
302 F.3d 448, 461 (5th Cir. 2002).
III. 	ANALYSIS
A. 	Orbital Settlement
1. 	Reliability
Westport 	seeks 	to 	strike 	Mr. 	Kidder’s 	royalty 	rate 	calculation, 	because 	it
impermissibly relies on a prior Bosch settlement agreement (“Orbital Settlement”). Dkt. No.
185 at 3. Westport argues that because there is “no royalty rate within the four corners of the
Orbital settlement agreement,” and no explanation to “how the parties arrived at this lump
sum settlement amount,” Mr. Kidder had “no information” from this agreement to calculate
his royalty rate. Id. at 4. More specifically, Westport argues that because the Orbital
Settlement does not directly cover Bosch’s products, it is missing a necessary analytical link
necessary to calculate a per-unit royalty rate. Id. Westport argues that because courts
routinely strike such “speculative” conversions, the Court should strike Mr. Kidder’s royalty
rate calculation. Id. at 4-5.
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Bosch argues that Westport’s dispute boils down to how many units were sold under
the Orbital Settlement. Dkt. No 209 at 3. Bosch disputes Westport’s argument that Mr.
Kidder’s reliance on the Orbital Settlement is improper, insofar as it fails to identify the
accused products. Bosch argues Mr. Kidder’s methodology is proper, because he identified
the accused products through other means.1 Id. Bosch argues such identification comports
with prior caselaw, where courts evaluated “whether an expert sufficiently explained how to
convert a lump-sum agreement into a running royalty,” because Mr. Kidder utilized his
expertise to convert the outside information to a unit sales figure. Id.
The Court is not persuaded that Mr. Kidder’s report insufficiently linked the Orbital
Settlement with its per-unit royalty rate. While the Orbital Settlement did not contain any
instruction to calculate such a rate, Mr. Kidder relied on external information, such as
Bosch’s 2009 sales, to calculate his final sales figure. Therefore, these sales figures
sufficiently account for Mr. Kidder’s deviation from the Orbital Settlement. Furthermore,
any challenges to Mr. Kidder’s “economic comparability” analysis speak to his report’s
ultimate reliability, not admissibility, and are “best addressed by cross examination and not
by exclusion.” Bio-Rad Lab'ys, Inc. v. 10X Genomics Inc., 967 F.3d 1353, 1374 (Fed. Cir.
2020). Therefore, Westport’s challenge thus fails.
1 “(1) Orbital itself identified the accused products through the litigation and (2) the agreement is not limited
to accused injectors, but covers any injectors.” Dkt. No. 209 at 3.
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2. 	Comparability - Time
Westport argues the Orbital Settlement is not comparable, because it was entered in
2020, after hypothetical negotiations were to take place, and because the larger number of
parties to the Orbital Agreement renders it dramatically different. Dkt. No. 185 at 7-8.
Bosch’s brief argues that such incongruities are permissible, so long as the expert
accounts for them. Dkt. No. 209 at 6. Bosch identifies portions of Mr. Kidder’s report that
address these differences. Id.
The Court is not persuaded that Westport has demonstrated the Orbital Settlement
does not contain data points that will be helpful to the jury. Westport’s primary authority,
ActiveVideo Networks, Inc. v. Verizon Commc'ns, Inc., did not find that such a time
difference rendered a past agreement inadmissible. 694 F.3d 1312, 1332 (Fed. Cir. 2012).
Instead, ActiveVideo found that the trial court did not abuse its discretion. This Court has
held proper such considering licenses with similar differences so long as they are properly
accounted for. See Headwater Rsch. LLC v. Samsung Elecs. Co., 2024 WL 4730474, at *2
(E.D. Tex. Nov. 8, 2024). Here, Mr. Kidder addressed the differences between 2005, the
time of the hypothetical negotiations and the Orbital Settlement’s 2020 negotiations. Like
Headwater, any dispute to whether Mr. Kidder properly considered the Orbital Settlement
is best considered on cross-examination. Therefore, the Court denies Westport’s Motion as
to the Orbital Settlement.
B. 	Profit-Damages Cap
Westport argues that Mr. Kidder improperly “caps” damages at Bosch’s profitability
on sales of the accused injectors. Dkt. No. 185 at 9. Westport argues that Mr. Kidder
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improperly relies solely on Bosch’s profits, while ignoring the business relationship between
Bosch and Robert Bosch GmbH, which effectively set Bosch’s profit levels. Id. at 9-10.
Westport concludes that this initial error renders this section wholly unreliable. Id.
In its response, Bosch argues that Mr. Kidder’s methodology goes to the weight of
the evidence, rather than its admissibility. Dkt. No. 209 at 7. Bosch argues that Mr. Kidder
never used profits as a cap but instead used Bosch’s profits as an input to his reasonable
royalty calculation. Id. Bosch adds that no caselaw supports exclusion when profits are
merely an input. Instead, Bosch argues that Westport’s caselaw merely states that an
infringer’s profits cannot be the “absolute cap” for damages. Id. at 8.
The Court is of the opinion that because Bosch’s profit figures are used for Mr.
Kidder’s Georgia Pacific factors analysis, they are admissible. Mr. Kidder’s analysis does
not cap damages at profitability. Instead, Mr. Kidder uses Bosch’s profits to calculate
damages. His analysis considers other factors, including sales and prior settlement
information, and is not legally impermissible. Therefore, any dispute speaks to the weight
Mr. Kidder’s report should be given, rather than whether it should be admitted. Therefore,
the Court denies Westport’s Motion as to Mr. Kidder’s use of Bosch’s profit figures.
C. 	Late Disclosed Discovery
1. 	Financial Information
Westport seeks to strike BOSCH_WP_0092027-37, “documents purporting to show
Bosch’s target profit margins from 2015 to 2020,” because they were disclosed after the
close of fact discovery. Dkt. No. 185 at 11. Westport argues this late disclosed evidence is
not important, because Bosch can rely on profit figures from other documents properly
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produced in discovery. Id. Westport argues this late disclosure prejudices them, because its
damages expert could not properly analyze this document.
In its response, Bosch argues this document was timely produced in response to a
motion to compel. Dkt. No. 209 at 10. Bosch adds this document complied with Westport’s
“evolved position,” and that any timeliness objections should have been raised upon
production. Id. Finally, Bosch argues that all four Primrose factors favor inclusion, and that
if Westport’s damages expert can testify to Robert Bosch GmbH’s target profits, expert
evidence on Bosch’s target profits should be admitted. Id. at 11.
The fact that these documents were produced within the time ordered at the hearing
on the motion to compel does not render them timely produced. They were produced after
the deadline for completion of discovery and after initial expert reports. 	There is no
suggestion that these documents were not readily available to Bosch years earlier. 	Rule
37(c) is straightforward: “if a party fails to provide information … the party is not allowed
to use that information … to supply evidence on a motion, at a hearing, or at a trial … .”
Therefore, the motion to strike reliance by Mr. Kidder on BOSCH_WP_0092027-37 is
granted.
2. 	Non-Infringing Alternatives (NIAs)
In its Motion, Westport seeks to strike NIA opinions in Mr. Kidder’s report that rely
on portions of Dr. Klopp’s report that they sought to strike. Dkt. No. 185 at 13. Because the
Court denied Westport’s Motion with respect to Dr. Klopp’s NIA analysis, the Court
likewise denies Westport’s motion to strike these portions of Mr. Kidder’s report.
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3. 	Non-Amplified Injectors
Westport argues that the portions of Mr. Kidder’s report that distinguish between
amplified and non-amplified injectors should be stricken, because Bosch failed to properly
disclose this theory during discovery. Id. at 14. Westport argues this late-disclosed theory,
unexplained by Bosch, is not important, because it only constitutes 8% of the alleged
damages. Id. Westport adds this late disclosure was not “justified or harmless,” and
“prejudices” Westport because it alleges new differences that Westport is unable to rebut Id.
at 14-15.
In its response, Bosch points to its second interrogatory responses, which identify the
amplified and non-amplified injectors. Dkt. No. 209 at 12-13. Bosch argues that Westport’s
brief fails to acknowledge this second response, because it only cites Bosch’s first
interrogatory responses. Id. Bosch adds that this supplemental interrogatory response sought
to 	correct 	a 	prior 	misunderstanding 	that 	all 	the 	accused 	CRI3 	Injectors 	featured
amplification. Id.
Because Bosch’s second interrogatory responses came before the close of discovery,
the Court finds that Bosch properly disclosed the non-amplified injectors. Therefore, the
portions of Mr. Kidder’s report that discuss non-amplified injectors should not be stricken.
IV. 	CONCLUSION
For the reasons discussed below, the motion to strike is GRANTED as to the
identified late-produced financial information, and is otherwise DENIED.
.
____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
SIGNED this 3rd day of January, 2012.
SIGNED this 2nd day of March, 2026.
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