Procomm International Pte. Ltd. v. Verizon Communications, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
PROCOMM INTERNATIONAL PTE.
LTD.,
Plaintiff,
v.
VERIZON COMMUNICATIONS, INC.,
CELLCO PARTNERSHIP D/B/A
VERIZON WIRELESS,
TELEFONAKTIEBOLAGET LM
ERICSSON, and ERICSSON, INC.,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
§
CASE NO. 2:24-CV-00009-RWS-RSP
MEMORANDUM ORDER
Before the Court is Defendants’ Motion to Strike Certain Testimony of Plaintiff’s
Technical Expert Dr. Murat Eron. Dkt. No. 101. The motion is fully briefed. See Dkt. Nos. 115,
123, 135. 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.
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
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 1 of 10 PageID #:
<pageID>

2
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, “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).
Despite the above, however, “even if testimony is reliable, it may still be excluded if it
relies on information that violates the rules [of Civil Procedure].” Estech Sys. IP, LLC v. Carvana
LLC, 2023 WL 3292881, at *2 (E.D. Tex. May 5, 2023).
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 2 of 10 PageID #:
<pageID>

3
II. 	DISCUSSION
A. Cost Savings Analysis & Rebuttal Non-Infringing Alternatives Opinions
i. 	Allegedly “Unacceptable” Alternatives
Defendants first move to strike portions of Dr. Eron’s report that discuss two alleged
alternatives. Dkt. No. 101 at 1–3. Relying on Longhorn HD LLC v. NetScout Sys., Inc., No. 2:20-
cv-349, 2022 WL 991696, at *4 (E.D. Tex. Mar. 31, 2022), and CLO Virtual Fashion Inc. v.
Zhejiang Lingdi Digital Tech. Co., No. 2:23-cv-724, 2025 WL 1900674, at *6 (E.D. Tex. July 9,
2025), Defendants argue alternatives must be “both available and acceptable.” Id. at 1.
Having already identified problems with Defendants’ non-infringing alternatives in a prior
section of his report, Dr. Eron first explains in a new section, entitled “Analysis of Cost Savings”
that he is “not aware of any available, acceptable non-infringing alternatives.” Dkt. No. 101-3 ¶
143. For both sets of accused products (mmWave and mid-band), Dr. Eron opines that he
“considered the next best alternatives of deploying a two-box system that separates the antenna
array from the RF electronics,” with either “cable runs” or “very short cable runs” “in between,”
the two boxes, and, for the mid-band products, “a tower mount multiple LNA box to boost received
signals.” Id. ¶¶ 145, 147. Dr. Eron then calculates what he describes to be the “cost savings” for
each product over its two-box alternative and summarizes these in two tables. Id. ¶¶ 146, 148.
Some context for how this cost savings analysis factors into the damages analysis is helpful.
The cost approach, which considers cost savings, is one of three approaches Plaintiff’s damages
expert, Mr. Justin R. Blok, considers. Dkt. No. 99-1 ¶¶ 57, 61. He then goes on to opine that “the
hypothetical negotiation would have principally focused on the cost savings realized by
Defendants from implementing the teachings of the ’813 Patent over the next best alternative.” Id.
¶ 145 (emphasis added). Mr. Blok then reproduces Dr. Eron’s cost savings tables. Id. ¶¶ 145–46,
162. Based on these tables, inter alia, Mr. Blok opines that “the incremental benefit provided by
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 3 of 10 PageID #:
<pageID>

4
the teachings of the ’813 Patent is at least” the cost savings amounts calculated by Dr. Eron. Id. ¶
164. He then multiplies the incremental benefit by a “split rate” that the parties would allegedly
have agreed to, resulting in a reasonable royalty rate amount per product. Id. ¶ 172. He multiplies
this rate per product by the number of products sold during the infringement period, resulting in a
reasonable royalty total for the ’813 Patent. Id. ¶¶ 177–78.
Going back to Defendants’ argument about Dr. Eron’s reported alternatives, Defendants
focus on a few of Dr. Eron’s statements about the alternatives: specifically, that they (1) “do not
provide the same features and benefits of the Asserted Claims of the ’813 Patent,” Dkt. No. 101-
3 ¶ 144 (emphasis added), (2) “would not offer even close to the original performance of the
products” “no matter what additional components were added to the system” and “beyond a certain
point, adding [] cables . . . would not be feasible,” id. ¶ 152 (emphasis added), (3) “do not fully
substitute for the Accused Products and/or why some customers might not find the next best
alternative commercially acceptable,” Dkt. No. 101-5 ¶ 345 (emphasis added), and (4) “it is not
clear that such alternatives would be commercially acceptable, as it would require more pole space
and have worse performance,” id. ¶ 356 (emphasis added). See Dkt. No. 101 at 2–3. Defendants
then argue that Dr. Eron’s alternatives to the ’813 Patent should be excluded because he opines
that they are not acceptable. Id. at 3 (relying again on Longhorn and CLO). Again, as Defendants
argue, cost savings analysis requires that the alternatives be non-infringing alternatives, which
additionally requires that these alternatives be both available and acceptable, and Dr. Eron has
opined, at least, that some of his alternatives are not “commercially acceptable.” Id. at 3.
The Court finds that this argument does not render Dr. Eron’s opinions insufficiently
reliable. Defendants make an argument that an alternative cannot be used “as both a sword and a
shield,” whereby a defendant would only be entitled to use an acceptable alternative (shield),
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 4 of 10 PageID #:
<pageID>

5
whereas a plaintiff could use an unacceptable one (sword). Dkt. No. 123 at 1–2. But Defendants
miss the mark by forgetting the context of the hypothetical negotiation. Defendants are trying to
drive down the price, while plaintiffs are trying to drive up the price. “Acceptable” is broad, but
let us assume for the purposes of this example that it narrowly means “profitable” (as Dr. Eron
means it here, Dkt. No. 101-5 ¶ 356). It then makes sense that a defendant would only point to an
alternative to the patented invention that was profitable because if the alternative was unprofitable
then the defendant could not make use of it in lieu of the patented invention, and it would be
ineffective in driving down the negotiated royalty; it would be effective in driving up the royalty,
however, if that were the only alternative. A savvy plaintiff would happily point to such an
unprofitable alternative in trying to negotiate the best royalty. And that is exactly how Plaintiff’s
expert, Dr. Eron, uses the two-box alternatives he proposes here, to drive up the reasonable royalty
rate. And that is completely consistent with the law. See, e.g., Grain Processing Corp. v. Am.
Maize Prods. Co., 185 F.3d 1341, 1348 (Fed. Cir. 1999) (defining “acceptability” with respect to
whether the alternative is “available or on the market at the time of infringement,” not to
commercial acceptability).
The Court therefore finds his analysis of alternatives to be sufficiently reliable to proceed
to the jury’s consideration, whether they credit it or not. Accordingly, the Court finds that the
Motion should be and hereby is DENIED to the extent it seeks to strike Dr. Eron’s opinions on
his own proposed alternatives.
ii. 	Allegedly Untimely Doctrine of Equivalents Argument Against Defendants’ Non-
Infringing Alternatives
Defendants’ 	technical 	expert, 	Dr. 	Becker, 	proposed 	four 	potential 	non-infringing
alternatives (“NIAs”), which would move various components (such as the mounting screws for
the heatsink), but would otherwise remain one-box solutions. Dkt. No. 101-5 ¶ 346. Dr. Eron rebuts
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 5 of 10 PageID #:
<pageID>

6
these NIAs, inter alia, by arguing that they “would likely still infringe” the ’813 and ’521 Patents
“at least under the doctrine of equivalents if not also literally.” Id. ¶ 353; Dkt. No. 101-3 ¶¶ 124,
128, 131, 134, 135. Notably, the Court previously found that doctrine of equivalents (DOE)
theories related to both patents were untimely, and denied Plaintiff leave to amend to add such
theories to its case following claim construction. Dkt. No. 76 at 2–3.
Relying on this prior decision denying leave to amend Plaintiff’s infringement contentions,
Defendants first argue that the Court is compelled to decide that Dr. Eron similarly cannot offer
DOE opinions rebutting Defendants’ proposed NIAs under the law of the case doctrine. Dkt. No.
101 at 3–4 (citing Outside the Box Innovations, LLC v. Travel Caddy, Inc., 695 F.3d 1285, 1301
(Fed. Cir. 2012)). Plaintiff responds that the non-infringing alternatives were only proposed after
the deadline for final infringement contentions, and its expert is entitled to respond to them. Dkt.
No. 115 at 7.
One question before the Court is thus whether a plaintiff can respond to a NIA using a new
theory not disclosed in infringement contentions. A second question raised is whether Dr. Eron
puts forth a viable DOE argument. 	Under the narrow circumstances presented here, where
Defendants put forth their NIAs after the deadline for amending contentions, the Court finds that
Plaintiff is not untimely in relying on DOE in its expert’s response, even where a broader reliance
on DOE was disallowed earlier in the case. 	The Court also finds that Dr. Eron sufficiently
developed his opinion on DOE given the very minor modification to the accused products
proposed as the NIA.
Accordingly, the Court finds that that Defendants’ Motion should be and hereby is
DENIED to the extent of Dr. Eron’s opinions stating that Defendants’ proposed NIAs would
“likely still infringe” “under” DOE.
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 6 of 10 PageID #:
<pageID>

7
B. Allegedly Untimely Infringement Opinions
iii. Dividing the First Airflow into Portions
As discussed in the Court’s Report and Recommendation on Defendants’ noninfringement
motions, claim 1 of the ’521 Patent requires “drawing a first airflow across one or more convective
openings of the heatsink, wherein the first airflow does not flow into one or more convective
openings of the heatsink.” ’521 Patent at 8:4–7. In its infringement contentions, to satisfy this
limitation, Plaintiff identified that the Accused Products “draw a first airflow across one or more
convective openings of the heatsink through the space between the rear panel and the heat sink
assembly, wherein the first airflow does not flow into the one or more convective openings of the
heatsink,” and produced several screenshots and other information allegedly evidencing this
theory. Dkt. No. 101-6 at 17–23 (emphasis added).
Focusing on the very next statement in the contentions, that “the path . . . runs from the fan
shroud into the chambers and across the heat sink fins,” Dkt. No. 101 at 6, Defendants complain
that Plaintiff’s infringement contentions did not provide sufficient notice of Dr. Eron’s theory that
the airflow through the fans and into the rear panel is divided into “portions” wherein the first
airflow portion does not flow into the convective openings of the heatsink, id. at 7–9. Defendants
argue, therefore, that this theory is untimely. Id. at 8–9. Defendants also argue that Dr. Eron’s
“portions” opinions are unreliable and irrelevant because he improperly relies on separation of a
unitary concept (airflow) to satisfy a negative “wherein” clause limitation. Id. at 7–8.
The Court disagrees on both accounts. Dr. Eron’s infringement opinions separating the
airflow into portions that do and do not flow into the heatsink was sufficiently disclosed as a theory
in Plaintiff’s infringement contentions. Defendants ignore a prior statement in the contentions, that
a first airflow is drawn “through the space between the rear panel and the first heat sink assembly,”
where the “first airflow does not flow into the . . . heatsink.” And to the extent that Defendants
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 7 of 10 PageID #:
<pageID>

8
argue what airflow cannot be separated into portions, the Court already rejected similar arguments
in Defendants’ motion for summary judgment of non-infringement of the ’521 Patent, and is
unprepared to find such opinions insufficiently reliable or irrelevant on this record.
Accordingly, the Court finds that Defendants’ Motion should be and hereby is DENIED
to the extent it seeks to strike as untimely or irrelevant Dr. Eron’s opinions dividing the airflow
into portions to satisfy the “drawing a first airflow” limitation of claim 1 of the ’521 Patent.
iv. Additional Side Airflow
Relatedly, but with respect to the SM 6701 product specifically, Defendants complain that
images appearing in Dr. Eron’s report showing additional side airflow “never appear in Plaintiff’s
Infringement Contentions and Plaintiff never alleged that there were discrete portions of the first
airflow on the sides of the heatsink that were alleged to meet any aspect of Claim 14” of the ’521
Patent. Dkt. No. 101 at 9–10. Defendants therefore argue that Dr. Eron’s theory that “there are two
airflows directed along the sides of the heatsink fins [in the SM 6701] that flow across convective
openings . . . without flowing into [them]” is untimely and should be excluded. Id.
However, experts routinely add to their reports to support the theories that were timely
disclosed in earlier contentions, and this type of addition is allowed by the rules. See, e.g., GREE,
Inc. v. Supercell Oy, No. 2:19-CV-311, 2021 WL 518462, at *4 (E.D. Tex. Feb. 11, 2021) (“A
plaintiff need only provide representative examples of the alleged infringement so as to give
defendants fair notice of its infringement beyond that which is provided by the mere language of
the patent claims themselves.”). The Court finds that is exactly what has happened here with Dr.
Eron’s addition of the images. And to the extent that Defendants complain Dr. Eron’s theory about
separating the airflow is untimely, the Court rejects those arguments for the same reasons it
rejected Defendants’ arguments about the prior “portions” theory.
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 8 of 10 PageID #:
<pageID>

9
Accordingly, the Court finds that Defendants’ Motion is DENIED to the extent it seeks to
strike portions of Dr. Eron’s opinions pertaining to the SM 6701 and the two allegedly infringing
airflows directed along the sides of the heat sink fins that flow across the convective openings of
the heatsink fins without flowing into them.
v. 	AIR 5322 Theories
Defendants once again raise a similar argument that Dr. Eron’s opinions concerning the
AIR 5322 that divide the airflow into portions to satisfy the negative “wherein” clause of the
“drawing a first airflow” limitation are untimely as not disclosed in Plaintiff’s infringement
contentions. Dkt. No. 101 at 14. The Court has already rejected this argument with respect to Dr.
Eron’s opinions about all products, generally above, and reaffirms its reasoning here—that theory
was sufficiently disclosed, including with respect to the AIR 5322.
Defendants raise two additional arguments, however. With respect to that same limitation,
Dr. Eron essentially opines that the AIR 5322 infringes because, in addition to the airflow above
the heatsink fins, airflow within the top portion of the heatsink fins does not count as flowing
within the “convective openings” of the heatsink, because the convective openings only consist of
the lower portions of the heatsink fins. Dkt. No. 101-4, app. A3 at 12–15. Defendants complain
this theory about what constitutes a convective opening was not sufficiently disclosed in Plaintiff’s
infringement contentions. Dkt. No. 101 at 14. With respect to limitation 1[d], which requires
“drawing a second airflow,” Defendants complain that Plaintiff’s infringement contentions did not
disclose Dr. Eron’s theory that the second airflow is drawn from the turbulent airflow within the
AIR 5322 heatsink itself. Id. at 14–15.
The Court again finds that these infringement theories were sufficiently disclosed in
Plaintiff’s infringement contentions. As to the first complaint, in its infringement contentions,
Plaintiff identified through an image that several zones of the AIR 5322 do not have airflow. Dkt.
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 9 of 10 PageID #:
<pageID>

10
No. 101-6 at 21. These are the same zones that Dr. Eron annotates in his report as being where the
“convective openings” of the heatsink are. Dkt. No. 101-4, app. A3 at 12–15. As to the second,
Defendants concede that the contentions identify “drawing a second airflow up from the heat sink
fins,” but argue that Dr. Eron’s rejected this theory and put forth a new one in his deposition. Dkt.
No. 101 at 14–15. The Court disagrees that Dr. Eron’s deposition testimony is inconsistent with
this theory. Dr. Eron and Plaintiff have been consistent throughout that the second airflow is drawn
from within the heatsink. See, e.g., Dkt. No. 101-7 at 191:21–193:25. These contentions were
sufficient to put Defendants on notice.
Consequently, the Court finds that Defendants’ Motion should be and hereby is DENIED
to the extent it seeks to strike Dr. Eron’s opinions that (1) a portion of the airflow constituting the
first airflow does not flow into the convective openings of the AIR 5322 heatsink, (2) the
convective openings constitute only some portion of the heatsink fins themselves, and (3) the
“drawing a second airflow” limitation is satisfied by the drawing of turbulent airflow from within
the heatsink.
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 9th day of February, 2026.
Case 2:24-cv-00009-RWS-RSP Document 164 Filed 02/09/26 Page 10 of 10 PageID
#: <pageID>