Longitude Licensing Limited v. BOE Technology Group Co., Ltd.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
LONGITUDE LICENSING LIMITED and
138 EAST LCD ADVANCEMENTS
LIMITED,
Plaintiffs,
v.
BOE TECHNOLOGY GROUP CO.,
LTD.,
Defendant.
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CASE NO. 2:23-CV-00515-JRG-RSP
MEMORANDUM ORDER
Before the Court is Defendant’s Motion to Exclude Certain Opinions of Stephen Dell
Concerning Damages. Dkt. No. 193. The motion is ripe, see Dkt. Nos. 202, 217, and Plaintiffs
submitted a notice of supplemental authority, see Dkt. No. 313. Defendant seeks to exclude
estimation of the number of BOE products that third parties import into the United States and
evidence of third-party licensing programs, which are allegedly inputs into Mr. Dell’s indirect
infringement damages and reasonably royalty analyses, because his analyses of those items are
allegedly unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993). See Dkt. No. 193 at 1. For the reasons set forth below, the Motion is
DENIED.
I. 	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; (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.
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Rule 702 requires trial courts to make a preliminary determination, when requested, as to
whether the requirements of the rule are satisfied regarding a particular expert’s proposed
testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999); Daubert, 509 U.S. at
592–93 (1993). Such courts are given broad discretion in making Rule 702 admissibility
determinations. Kumho Tire, 526 U.S. at 152 (“[A] judge must have considerable leeway in
deciding in a particular case how to go about determining whether particular expert’s testimony is
reliable”). Although the Fifth Circuit and other courts have identified various factors that the 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. See 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 to consider. 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 underlying one expert’s testimony.”); Pipitone v. Biomatrix, Inc.,
288 F.3d 239, 249–50 (5th Cir. 2002) (“‘The 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 an Advisory Committee Note to Fed. R. Evid. 702)). As the Supreme Court
explained, 	“[v]igorous 	cross-examination, 	presentation 	of 	contrary 	evidence, 	and 	careful
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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).
Despite the above, however, “[e]ven if testimony is reliable, it may still be excluded if it
relies on information that violates the [Federal] [R]ules [of Civil Procedure].” Estech Sys. IP, LLC
v. Carvana LLC, 2023 WL 3292881, at *2 (E.D. Tex. May 5, 2023).
II. 	DISCUSSION
BOE argues that the Court should exclude certain portions of Mr. Dell’s opinions, which
may be divided into two groups, first related to his estimation of indirect infringement damages
using public data from third parties, and second, related to his reliance on third party general
licensing terms. Dkt. No. 193 at 8–15. The Court addresses each in turn.
A. Mr. Dell’s Estimation of Indirect Infringement Damages
Plaintiffs asked Mr. Dell to “calculate the portion of BOE’s sales that have likely been sold
or imported into the United States.” Dkt. No. 193-2 ¶ 83. Making this inquiry difficult, BOE
represented that it “does not maintain records tracking its downstream customers’ importation in
the United States,” and does not itself import products incorporating the Accused Instrumentalities.
Id. Dell therefore “relied on available information to determine the portion of the Accused
Instrumentalities that are manufactured and sold outside of the United States that are subsequently
incorporated into finished consumer products, which are then imported into the United States for
sale to end customers/users.” Id. 	¶84 (emphasis added). Specifically, he identified twelve
customers that have “at least 0.5% share of BOE’s revenue produced to date in this case,” and who
“report their financial standing publicly,” which collectively “account for approximately 64.6% of
the revenue produced in this case by BOE to date.” Dkt. No. 193-3 ¶ 26.
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BOE agrees that Mr. Dell then used publicly available information from those companies
“to determine what percentage of each of the twelve customer[s’] overall revenue came from the
United States.” Dkt. No. 193 at 2 (citing Dkt. No. 193-3 ¶ 27) (emphasis added). However, BOE
takes issue with the fact that Mr. Dell’s use of “these revenue numbers included revenue for all
products of the customers, not just products with LCD panels.” Id. at 2, 11. BOE argues that this
data included “the sales of products and services that do not contain the accused LCD panels” and
erroneously assumed “that sales revenue . . . reflected sales of products with the accused
components and that each [customers’] product shipped into the United States contained an
accused BOE LCD panel.” Id. at 11 (internal quotation marks omitted) (cleaned up). BOE also
takes issue with his use of only twelve customers’ data, from BOE’s 700-plus customers. Dkt. No.
193 at 3, 11. BOE argues that these items render Mr. Dell’s methodology the product of “unreliable
data and built on speculation.” Id. at 8.
Having considered these arguments and reviewed the briefing and record in full, the Court
finds that Mr. Dell’s analysis, estimating what percentage of BOE’s allegedly infringing products
are imported into the United States, is sufficiently reliable.
Mr. Dell does not use the revenue numbers that include non-accused products as a base for
apportionment. See Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1320–21 (Fed. Cir. 2011)
(clarifying Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1338–39 (Fed. Cir. 2009) and
rejecting the argument that “the entire market value of the product can be used if the royalty rate
is low enough”); Roland Corp. v. inMusic Brands, Inc., No. 2023-1327, 2025 WL 926703, at *15
(Fed. Cir. Mar. 27, 2025) (explaining that the “damages calculation, based in part on non-
infringing [revenue], ‘cannot support the jury’s damages award’”). Instead, he only uses such sales
to estimate the percentage of BOE products that are imported into the United States.
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Unlike in other cases where the Federal Circuit found methods to be unreliable (see, e.g.,
Cyntec Co. v. Chilisin Elecs. Corp., 84 F.4th 979, 987–90 (Fed. Cir. 2023)), BOE here admits that
the “panels and modules are incorporated into laptops, mobile phones, desktop monitors, TV sets,
and pads and tablets,” (see Dkt. No. 193 at 1) of third-party products, among those products that
were included in the revenues from which Mr. Dell estimated importation rates. Moreover, Mr.
Dell opined that this number represents a “reasonable approximation of the units associated with
BOE’s Accused Instrumentalities that were manufactured and/or sold outside the United States
and later imported into the United States by BOE’s downstream customers in finished consumer
products,” see Dkt. No. 193-3 ¶ 30. 	Finally, Mr. Dell’s use of publicly available information
related to a subset of customers representing the lion’s share of BOE’s revenue, (see Dkt. No. 193-
3 ¶ 26 (“64.6%”)), and estimation of the importation rate was made necessary by BOE’s inability
to produce more granular data upon which Mr. Dell could base his calculations, see Dkt. No. 193
at 1–2.
BOE raises an additional argument in reply: “where more specific data estimating U.S.
sales of the accused products or similar products is available, as it is in this case, and which was
actually used by the parties in the normal course of their business dealings (including discussion
relating to the patents-in-suit), the more specific information should be used.” See Dkt. No. 217 at
3 (citing Dkt. No. 217-1 ¶ 133). BOE is referring to its own expert, Mr. Alan Ratliff, and his use
of the annual estimate of BOE’s U.S. import rate of 20.5% prepared by Plaintiffs and shared with
BOE during a pre-suit licensing meeting in April 2023. See Dkt. No. 202-2 ¶¶ 85–86. Plaintiffs
respond, and the Court agrees, that BOE and Mr. Ratliff’s “criticism of Mr. Dell’s import rate
estimation is simply that Mr. Dell did not rely on the same evidence as Mr. Ratliff,” see Dkt. No.
202 at 4, and specifically, that he relies on a tier of evidence lower in the hierarchy of reliability,
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according to Mr. Ratliff, see Dkt. No. 202-4 at 80:25–82:7. However, this complaint chiefly goes
to the weight of Mr. Dell’s testimony, not its admissibility. See, e.g., United States v. 14.38 Acres
of Land, 80 F.3d 1074, 1077 (5th Cir. 1996) (“As a general rule, questions relating to the bases
and sources 	of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility . . . .”); AIG Europe Ltd. v. Caterpillar Inc., No. 1:17-CV-319, 2019 WL 8806217,
at *7 (E.D. Tex. Oct. 3, 2019) (“These complaints go to the weight, not the admissibility, of
Stringer’s opinion, as they are focused primarily on the sources utilized by Stringer in conducting
his analysis.”).
Accordingly, the Court finds that Defendant’s Motion should be DENIED as to Mr. Dell’s
estimation of allegedly infringing products imported into the United States for the purpose of
calculating damages from BOE’s alleged indirect infringement.
B. Mr. Dell’s Reliance on the General Philips Licensing Terms
In his reasonably royalty analysis, under Georgia Pacific Factor No. 12, “the portion of
the profit or of the selling price that may be customary in the particular business or in comparable
businesses to allow for the use of the invention or analogous invention,” see Georgia-Pacific Corp.
v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (Fed. Cir. 1970), Mr. Dell uses the royalty rates
from two licensing programs from Philips to check his analysis under Factor No. 4. See Dkt. No.
193-2 ¶¶ 325–39, 360–62 (“While I recognize that the rates in the Philips licensing program are
offered rates . . . , the rates . . . are publicly disclosed by a ‘willing’ licensor in the relevant industry,
as well as related to analogous technologies incorporated into products similar to, or the same as,
the Accused Instrumentalities. . . . [T]he licensing program would support and provide
confirmatory evidence of the . . . licensing practices . . . in the relevant display industry . . . and
provides confirmatory evidence demonstrating the acceptability of Plaintiffs’ actual licensing
policy and practice discussed in Georgia Pacific Factor 4 above.” (emphasis added)).
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BOE takes issue with two additional items here, arguing that they render Mr. Dell’s
analysis “unreliable, based on insufficient facts and data, and irrelevant.” See Dkt. No. 193 at 13
(citations omitted). Specifically, BOE argues that Mr. Dell’s opinions based on the Philips program
terms cannot be admissible under Lucent Techs. v. Gateway, Inc., 580 F.3d 1301, 1325 (Fed. Cir.
2009) because (1) the Philips program terms are “not actual licenses,” and (2) Plaintiffs did not
have its technical expert opine, either in his report or through consultation with Mr. Dell, on the
comparability of the technology in the Philips program. See Dkt. No. 193 at 13–15.
The Court disagrees. In each of the cases cited by BOE where the expert’s opinions were
excluded based on use of a license, it was for some other reason than BOE argues here. See, e.g.,
Lucent Techs., 580 F.3d at 1325 (Factor No. 2 “examines whether the licenses relied on by the
patentee in proving damages are sufficiently comparable to the hypothetical license at issue in suit.
. . . Lucent’s licensing expert . . . argued for damages based solely on a running royalty rate. . . .
On appeal, however, Lucent defends the damages award, contending that substantial evidence
supports the lump sum award . . . .”); Syneron Medical Ltd. v. Invasix, Inc., No. 8:16-CV-143,
2018 WL 4696969, at *14–15 (C.D. Cal. Aug. 27, 2018) (“Mr. Weinstein admitted that he . . . did
nothing ‘to investigate the technological comparability. . . . Furthermore, three out of four . . . are
settlement agreements . . . [and] any probative value they might have would be ‘substantially
outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury’ . . .
[and the other] agreement . . . includes the transfer of tangible assets and trademark rights . . ..”
(citations omitted)); Ravo v. Covidien LP, 55 F. Supp. 3d 766, 774–77 (E.D. Pa. 2014) (“One way
to establish the reasonable royalty . . . is to rely on license rates paid for comparable patents [under]
Georgia Pacific factor 2. . . . The asserting expert has the duty to demonstrate comparability [of a
license] . . . [but] once the expert shows some ‘discernable link between the comparable license
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and the claimed technology,’ distinctions and oversights are matters for cross-examination. . . . At
no time in its original briefing or at oral argument did Ravo assert that Passaggio’s testimony
concerned Georgia Pacific factor 12 or 14, instead of factor 2, even in the alternative. . . .
Comparability must be proven under factor 12, just as it must be proven under factor 2. Passagio’s
opinion, therefore, [which failed to opine on the comparability whatsoever] . . . would suffer from
the same deficiency with respect to comparability . . . .” (citations omitted)).
In fact, in each of BOE’s cited cases, apart from Syneron, the non-license or non-
comparable license was used as an input into the reasonable royalty analysis. Only in Syneron was
it used as a “check.” See 2018 WL 4696969, at *14. However, in Syneron, the expert admitted he
did “nothing . . . to investigate the technical comparability of the licenses.” See id. Unlike the other
cases cited here, Mr. Dell did not use the Philips program as an input, but merely as a check to his
already calculated reasonable royalty. And distinguishing Mr. Dell’s analysis from the expert’s
analysis in Syneron, Mr. Dell confirmed in deposition and in his own report that he investigated
the technical comparability of the technology in the Philips program. And the compared terms that
Mr. Dell uses are not from a license obtained through litigation or including irrelevant and un-
apportionable terms, such as trademarks, as in Syneron, but a market offering by an industry leader,
as Mr. Dell opines. Because Mr. Dell has shown some “discernable link” between the allegedly
comparable Philips program and the claimed technology, distinctions and oversights are now
matters for cross-examination. See ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 870 (Fed. Cir.
2010). To the extent that BOE takes issue that the Philips program terms are not an actual license
between the parties, BOE also admits that that “Factor 12 may be broader than Factor 2.” See Dkt.
No. 193 at 13; see also Georgia-Pacific, 318 F. Supp. at 1120 (omitting the term “license” from
Factor No. 12 but including it in Factor No. 2).
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Accordingly, the Court finds that Defendant’s Motion to exclude paragraphs 325–39 and
360–62 of Mr. Dell’s report, in which he uses the Philips licensing program’s terms as a check for
his reasonable royalty analysis, is denied.
III. 	CONCLUSION
For the reasons provided above, the Motion is DENIED.
____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
SIGNED this 3rd day of January, 2012.
SIGNED this 6th day of January, 2026.
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