Vasu Holdings, LLC v. Samsung Electronics Co., Ltd. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VASU HOLDINGS, LLC,
Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA,
INC.,
Defendants.
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Case No. 2:24-cv-00034-JRG-RSP
MEMORANDUM ORDER
Before the Court is Samsung’s Daubert Motion and Motion to Strike Expert Testimony of
Dr. Eric Cole. Dkt. No. 146. For the reasons discussed below, the Court is of the opinion that the
Motion be DENIED.
I. 	BACKGROUND
Defendants seek to strike certain testimony of Plaintiff’s expert Dr. Eric Cole. Dr. Cole’s
report is relevant to rebutting Defendants’ § 112 written description defense for three of the
asserted patents, U.S. Patent Nos. 8,886,181 (“the ʼ181 Patent”), 10,368,281 (“the ʼ281 Patent”)
and 10,419,996 (“the ʼ996 Patent”). In their Reply, Defendants have narrowed their Motion to
sections of Dr. Cole’s report that discuss the ʼ181 Patent and the 11/330,675 application. Dkt. No.
173 at 1. The ʼ181 Patent teaches different ways to switch between different wireless networks by
simultaneously establishing connection to a second, stronger, network without losing connection
to the first.
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; (c) the testimony is the product
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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 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
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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
In their Motion, Defendants contend that Dr. Cole’s report cannot raise written description
(§ 112) objections, because Plaintiff failed to serve a complete response to an interrogatory that
requested further details. Dkt. 146 at 3. Defendants argue prejudice because Dr. Cole’s report relies
on information that was not timely disclosed in discovery. Thus, defendants contend that any § 112
theories not disclosed in discovery are barred under the Fifth Circuit’s Barrett test, because their
own expert, Dr. Lanning has no opportunity to rebut them. See Barrett v. Atl. Richfield Co., 95 F.3d
375, 380 (5th Cir. 1996).1
In response, Plaintiff contends that Dr. Cole’s report does not cite to new information but
rather draws from the patents themselves or the documents cited in Defendant’s expert’s § 112
report. Dkt. No. 168 at 5. Plaintiff relies on Mojo Mobility v. Samsung to argue that any new
information is proper when used to rebut Defendant’s § 112 defenses. 2024 WL 3527240 (E.D.
Tex. July 24, 2024) (“the Court finds that Ms. Rowe's discussion of the “wired charging” NIA is
1 The Barrett Factors are:
1. 	the explanation, if any, for the party's failure to comply with the discovery order;
2. 	the prejudice to the opposing party of allowing the witnesses to testify;
3. 	the possibility of curing such prejudice by granting a continuance; and
4. 	the importance of the witnesses' testimony.
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in direct rebuttal to Mr. Bergman's opinions. Accordingly, the Court does not find that discussion
of the NIA was untimely.”).
Plaintiff also argues that Defendant improperly shifts the burden to require Plaintiff to rebut
Defendants’ invalidity theories, without Defendant’s initial invalidity showing. They argue
Gamevice Inc. v. Nintendo Co. holds that because Defendants bear the burden for a § 112 defense,
Defendants must set forth their entire case prior to Plaintiff’s rebuttal. 2020 WL 13739193, at *7
(N.D. Cal. June 4, 2020); Id. at 6.
The Court is persuaded that Dr. Cole’s report sufficiently references prior disclosures or
serves to rebut § 112 invalidity contentions raised by Defendant. In Mojo Mobility, the Court
permitted Plaintiff’s expert to raise non-infringing alternatives arguments in the rebuttal brief,
because they were first raised in Defendant’s expert report. Here, Vasu addressed Samsung’s § 112
arguments “once that information was made available.” Dkt. No. 168 at 13. Although Vasu’s
disclosures came after the close of discovery, Defendants have not shown that the materials relied
upon by Plaintiff’s expert were not either disclosed in the timely interrogatory response, drawn
from the intrinsic record of the asserted patents, or relied upon in the report of Defendants’ expert.
The Court is further persuaded that Defendant improperly shifts the burden, and that
Defendant, not Plaintiff must make the initial case for any invalidity defense, then Plaintiff can
rebut. In Gamevice, the Court looked to prior caselaw where the moving and non-moving party
failed to rebut an issue until after the close of discovery. The Court noted that disclosure by parties
with the burden of proof on an issue after the close of discovery was merely late. Conversely, the
Court “cannot fault” parties without the burden, because they must rebut after the moving party’s
initial showing. In the sur-reply, Plaintiff identified portions of Dr. Cole’s report that rebutted
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Defendant’s invalidity report. Because Defendant carries the burden with respect to any § 112
defenses, Plaintiff’s disclosures to rebut Defendant’s expert report remain timely.
Thus, because the Barrett factors favor Plaintiff, the Court is of the opinion that
Defendant’s Motion to strike Dr. Cole’s be denied.
IV. 	CONCLUSION
For the reasons discussed above, the Motion be is DENIED.
.
____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
SIGNED this 3rd day of January, 2012.
SIGNED this 1st day of February, 2026.
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