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.
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CASE NO. 2:24-CV-00009-RWS-RSP
MEMORANDUM ORDER
Before the Court is Defendants’ Motion to Strike Certain Expert Opinions of Mr. Justin
Blok. Dkt. No. 99. The motion is fully briefed. See Dkt. Nos. 116, 125, 138. For the reasons set
forth below, the Court denies the Motion.
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
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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, “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).
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II. 	DISCUSSION
The Court begins with the portion of Defendants’ Motion asking it to strike Mr. Blok’s
reasonable royalty opinions as to the ’521 Patent. Dkt. No. 99 at 10–13. Plaintiff has recently
elected to pursue only the ’813 Patent, Dkt. No. 162 at 1, and Mr. Blok separates out his damages
opinions with respect to each patent. Defendants’ request is therefore moot. Accordingly, the Court
finds that this portion of the Motion should be and hereby is DENIED AS MOOT.
With respect to the ’813 Patent, Defendants raise two arguments. The first argument, that
Dr. Eron’s opinion concerning the commercial unacceptability of his own proposed alternatives
precludes the use of that alternative in the calculation of a reasonable royalty using a cost savings
approach, Dkt. No. 99 at 4–9, was raised and rejected by this Court in Defendants’ motion to strike
certain opinions of Dr. Eron. The reasoning in the Order on that motion is adopted in full to reject
Defendants’ overlapping argument here.
Defendants’ second argument regarding the ’813 Patent involves Mr. Blok’s use of the
Procomm-Kaelus Settlement Agreement (“PKSA”). Dkt. No. 99 at 9–10. Mr. Blok states in a
footnote that if it was used as a basis to calculate damages, then the “royalty for rights to the ’813
Patent would be no less than $7.3 million.” Dkt. No. 99-(1) at 78 n.287. The PKSA settled a lawsuit
between Procomm and Verizon regarding an accused Kaelus filter; Kaelus agreed to pay a sum in
exchange for a license to a different patent, covering the number of accused products sold. Id. ¶
128–130. Mr. Blok recites that “it is Dr. Eron’s opinion [that] the teachings of the ’721 Patent are
technologically comparable to . . . the ’813 Patent; however, the benefits provided by the [latter]
are significantly more valuable . . . because [it] addresses the entire integrated antenna unit for its
lifetime functioning, whereas the ’721 Patent is directed to a specific portion of the frequency band
. . . .” Id. at 78 n.287. He then calculates the $7.3 million figure using the number of accused
products multiplied by the per unit royalty. Id.
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Defendants argue that the PKSA cannot be reliably used to calculate damages for the ’813
Patent because it does not reflect built in apportionment such that it can be ported over from the
’721 Patent directly to the ’813 Patent. Dkt. No. 99 at 9–10. Specifically, they argue that there is
not parity between the hypothetical negotiation and the license with respect to the timing, parties,
and technology, and insufficient comparison is made by Plaintiff’s experts to use the license for
built in apportionment purposes. Id. at 10–13. With respect to differences in technology,
Defendants argue that it is improper to compare only the patented technology, rather the accused
products must also be compared. Id.; Dkt. No. 125 at 4 (relying on MLC Intell. Prop., LLC v.
Micron Tech., Inc., 10 F.4th 1358, 1374 (Fed. Cir. 2021)).
However, exact parity of timing, parties, and technology is not required for a license to be
used for built in apportionment—the license is only required to be “sufficiently comparable,” such
that “principles of apportionment were effectively baked into the purportedly comparable license.”
See Omega Patents, LLC v. CalAmp Corp., 13 F.4th 1361, 1377 (Fed. Cir. 2021) (citations
omitted) (internal quotations omitted). Moreover, as the Federal Circuit explained in MLC,
distinguishing from Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC, 927 F.3d 1292 (Fed.
Cir. 2019), only the “differences between the technology at issue in the settlement agreement and
the accused technology” need to be accounted for by the expert. See MLC, 10 F.4th at 1374
(emphasis added). In MLC, the expert “provided no evidence or explanation for how the 0.25%
royalty rate he derived from the . . . agreement accounts for apportionment” of the accused
technology, whereas in Elbit, the expert “appropriately accounted for the differences.” Id. at 1374–
75. Here, having reviewed the briefing and evidence cited, the Court finds sufficient evidence
regarding the PKSA that supports Mr. Blok’s opinion that a specific royalty rate derived from that
agreement already accounts for the apportionment. The Court therefore finds that the Motion
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should be DENIED to the extent it seeks to exclude Mr. Blok’s opinions regarding damages for
Defendants’ alleged infringement of the ’813 Patent.
III. 	CONCLUSION
Accordingly, 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 10th day of February, 2026.
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