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I. INTRODUCTION 

WSOU’s response confirms that Dr. McClellan failed to properly apportion out 

unpatented features of the accused products and that Messrs. Blok’s and Bratic’s reasonable 

royalty analysis is unreliable. WSOU fails to articulate how Dr. McClellan arrived at either (1) 

the arbitrary technical weights he assigned to a subset of features of Aruba ClearPass, or (2) the 

values he attributed to the ’702 patent. These defects cannot be cured by the eleventh-hour errata 

submission changing the substance of Dr. McClellan’s testimony on which WSOU relies. Nor 

can WSOU reconcile its assertion that 100 percent of the accused Azure Monitor’s value is 

derived from the ’160 and ’902 patents with Dr. McClellan’s testimony to the contrary. 

Moreover, WSOU does not even attempt to establish the reliability of Messrs. Blok’s and 

Bratic’s allocation of alleged incremental profits based on the ratio of Microsoft’s R&D-tooperating expenses, or explain how this analysis is tied to the patents-in-suit or the accused 

products. WSOU has not met its burden of showing that the R&D-to-operating expenses ratio is 

the base of a reliable incremental profits analysis. These flaws render Dr. McClellan’s 

apportionment analysis and Messrs. Blok’s and Bratic’s reliance thereon as well as their 

reasonable royalty opinions inadmissible. 

II. ARGUMENT 

A. Dr. McClellan’s Technical Apportionment Analysis for the ’702 Patent Is 

Unreliable and Must Be Excluded.

1. Dr. McClellan Did Not Apportion Out Unpatented Features of Aruba 

ClearPass

In performing his apportionment analysis for the ’702 patent, Dr. McClellan assigned 100 

percent of the value of the third-party Aruba ClearPass product1

 to five “feature sets” while 

1

 Microsoft does not dispute that an expert may compare features of third-party products to the 

accused product in forming damages opinions under certain circumstances. However, WSOU’s 

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ignoring “key features” that indisputably drive sales of ClearPass. WSOU notes that Dr. 

McClellan selected these five feature sets from a ClearPass marketing document, but confirms 

that his apportionment analysis includes only “two or three of . . . eight” key features identified 

in that document. Dkt. 160 at 8; see also id., Ex. C. WSOU’s assertion that Microsoft has not 

“identified a single feature ignored by Dr. McClellan” is therefore both incorrect and irrelevant. 

In addition to the aforementioned “key features” from the Aruba ClearPass Policy Manager Data 

Sheet, Microsoft’s opening brief explicitly states that ClearPass implements the RADIUS 

standard, which includes hundreds of features that Dr. McClellan did not consider. Dkt. 132 at 8 

(citing DeKok Rebuttal Rept., ¶111). More importantly, Dr. McClellan admitted, and WSOU 

concedes, that he did not consider “an enormous amount” of ClearPass features because they 

“are not implicated by the asserted claims of the patent[.]” (See McClellan Dep. at 41:2-5 ); Dkt. 

160 at 8. 

 WSOU downplays the significance of Dr. McClellan’s failure to consider this 

“enormous amount” of ClearPass features by arguing that “such ‘features’ were merely 

marketing or sales features that were not relevant to the claims of the ’702 patent or to 

Microsoft’s infringing use of the same.” Dkt. 160 at 8. But this supports Microsoft’s position. 

The fact that features used for sales and marketing of ClearPass are not relevant to the claims of 

the ’702 patent means that Dr. McClellan was required to apportion out these features in his 

assertion that “use of third-party data is especially proper in the current matter where the 

defendant has withheld internal documents and/or claimed that no such comparable information 

exists” is incorrect. Dkt. 160 at 7 n.2. Microsoft has produced hundreds of documents 

discussing features of the accused Network Policy Server (“NPS”), and has produced source 

code for four different versions of Windows Server (including the source code for NPS across 

those versions). There is no reason why Dr. McClellan could not have analyzed features of NPS 

in performing an apportionment analysis. In any event, Dr. McClellan’s analysis of ClearPass is 

inadmissible for the reasons explained in Microsoft’s opening brief and herein. 

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analysis. See Niazi Licensing Corp. v. St. Jude Med. S.C. Inc., No. 2021-1864,2022 WL 

1072909, at *13 (Fed. Cir. Apr. 11, 2022); MLC Intell. Prop. LLC v. Micron Tech., Inc., 10 F.4th 

1358, 1373 (Fed. Cir. 2021). WSOU concedes that he did not do so. 

Seeking to avoid compliance with this requirement, WSOU relies on new substantive 

testimony from Dr. McClellan, submitted via an errata sheet at 11:01 PM on the filing deadline 

for WSOU’s response. See 4/26/22 Barcelo Eml. WSOU characterizes its change as a 

“clarification,” Dkt. 160, Ex. G, but a review of the original and altered testimony clearly 

demonstrates that WSOU and Dr. McClellan added substantive content to Dr. McClellan’s 

testimony at the last minute for the purpose of addressing Dr. McClellan’s failure to apportion. 

Compare McClellan Dep. at 27:24-28:4 (“they’re add-on features for the purpose of marketing 

and product sales, not core features that would be concerning to a technologist who is 

implementing AAA functionality.”), with Dkt. 160, Ex. G at 228 (altering testimony to “they’re 

add-on features for the purpose of marketing and product sales that do not add any additional 

value to the Aruba ClearPass product . . .”). 

As an initial matter, this substantive addition to Dr. McClellan’s testimony is an improper 

use of the errata sheet and should not be credited. See, e.g., Touchcom, Inc. v. Bereskin & Parr, 

790 F. Supp. 2d 435, 465 (E.D. Va. 2011) (“[T]he purpose of an errata sheet is to correct alleged 

inaccuracies in what the deponent said at his deposition, not to modify . . . what he wishes that he 

had said.”) (citations omitted); Tuttle v. Tyco Elecs. Installation Servs., Inc., No. 2:06-CV-581, 

2008 WL 343178, *4 (S.D. Ohio Feb. 7, 2008) (“Rule 30(e) does not allow one to alter what was 

said under oath. If that were the case, one could merely answer the questions with no thought at 

all[ ], then return home and plan artful responses. Depositions differ from interrogatories in that 

regard. A deposition is not a take home examination.”) (citations omitted). More importantly, 

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Dr. McClellan’s new testimony renders his statement internally contradictory. Dr. McClellan 

testified that the features he excluded from his apportionment analysis were “for the purpose of 

marketing and product sales[.]” McClellan Dep. at 27:24-25. Features that help a company 

make “product sales” necessarily have value; Dr. McClellan’s new assertion that they “do not 

add any additional value to the Aruba ClearPass product” is therefore nonsensical. Dkt. 160, Ex. 

G at 228. He simply chose to ignore these features because they are unrelated to the asserted 

claims of the ’702 patent, in contravention of the apportionment requirement. 

2. Dr. McClellan’s Numerical Weights Are “Plucked From Thin Air.”

WSOU cannot meaningfully distinguish Dr. McClellan’s unsupported assignments of 

technical weights and evaluations of the weight of each feature attributable to the ’702 patent 

from the analysis that this Court excluded in CloudofChange. Despite WSOU’s assertion that 

Dr. McClellan’s apportionment “does not begin and end with a bare conclusion[,]” WSOU’s 

characterization of Dr. McClellan’s process confirms that his analysis is even more lacking than 

the analysis of the expert in CloudofChange. Dkt. 160 at 10. 

In CloudofChange, the Court excluded the expert’s apportionment analysis despite 

counsel’s explanation that the expert “talks generally about the components of [the relevant 

technology]” and “has four factors that he goes into great detail over the rest of the report.” 

CloudofChange Pretrial Tr. at 19. Specifically, the expert in CloudofChange 

talked about the features of point-of-sale systems that commonly 

offer these high-level components, transaction handling -- and he 

goes into some detail -- inventory item management, PO -- pointof-sale contact management, POS infrastructure, reporting and 

security. He continues to explain that it would be the first four of 

those that he considers to be core. 

Id. The expert further explained that two additional components of the accused technology were 

“not critical to the function of POS system but are offered as additional options for customers.” 

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Id. at 19-20. Based on his identification of core and non-critical features, the expert concluded 

that 80 percent of the accused system embodied the asserted patented components of the patentsin-suit. Id.; see also Dkt. 132, Ex. K at 6-7. But this Court held that this explanation of which 

features were “core” and “not critical” did not suffice as an “explanation on how [the expert] 

reaches this 80% apportionment” and excluded the analysis. Id. at 7; see also CloudofChange 

Pretrial Tr. at 19-25. 

Like the inadmissible analysis in CloudofChange, Dr. McClellan’s percentage 

calculations are conclusory, and Microsoft has “no way to understand or meaningfully rebut” his 

numbers. Dkt. 132, Ex. K at 7 (citations omitted). WSOU contends that Dr. McClellan’s 

analysis “starts with a description and categorization of ClearPass feature sets and then provides 

a step-by-step calculation to reach his conclusion as to relative attributable value[.]” Dkt. 160 at 

10. As Microsoft explained in its opening brief, however, Dr. McClellan’s “description and 

categorization of ClearPass feature sets” do not provide a basis for the arbitrarily selected 

percentages set forth in Table 1 of his report. Dr. McClellan uses terms such as “relatively high” 

and “the majority of this feature” to support the figures in the first two columns of the table, 

without providing any methodology for how he arrived at these values. See Dkt. 132 at 9-10 

(citing McClellan 702 Inf. Rept., ¶¶ 41-42, 44, 46-49). These are exactly the type of “vague 

qualitative notions of the relative importance” of features that the Federal Circuit has held cannot 

support an apportionment opinion, LaserDynamics, Inc. v. Quanta Comput., Inc., 694 F.3d 51, 

69 (Fed. Cir. 2012), and that this Court struck in CloudofChange. 

Moreover, WSOU’s assertion that Dr. McClellan performed a “step-by-step calculation” 

has no support, and is in fact contradicted by Dr. McClellan’s deposition testimony. WSOU 

identifies a single “step” of calculation: “multiplying each feature set’s relative technical weight 

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by its attributable weight” to determine the “relative contribution of ClearPass features covered 

by the ’702 patent.” Dkt. 160 at 4. This misses the point. That the third column in Dr. 

McClellan’s table constitutes the product of the first two columns does not explain how Dr. 

McClellan selected the values of the first two columns in the first place. And Dr. McClellan 

confirmed that he did not perform any calculations or otherwise replicable process to reach these 

numerical weights. (McClellan Dep. at 28:23-29:7, 33:5-9.) 

WSOU’s cited case law does not endorse the “the technical apportionment method 

utilized by Dr. McClellan in this case” as WSOU asserts. In Cioffieta v. Google, Inc., the 

defendant argued that the plaintiff’s approach was unreliable because it “relies on the allegedlyinfringing feature’s technical contribution to Chrome, as opposed to its economic contribution.” 

2:13-cv-00103-JRG, Dkt. 209 at 6 (E.D. Tex. Jan. 9, 2017). The court found that the analyzed 

features were both “technical” and “economic” attributes based on the fact that they were 

included in the defendant’s marketing brochure on which the expert relied. Id. Thus, to the 

extent that Cioffieta bears on this case, it confirms that Dr. McClellan’s failure to consider 

features of ClearPass that he deemed “marketing or sales features that were not relevant to the 

claims of the ’702 patent” was improper. 

 The portion of Osseo Imaging, LLC v. Planmeca USA, Inc. that WSOU cites has no 

factual connection to this case. There, the Court declined to strike an apportionment analysis “as 

arbitrary or based on erroneous attribution to non-accused features.” No. 17-1386-LPS, Dkt. 153 

at 17 (D. Del. Oct. 28, 2020). The opinion contains no analysis of the disputed opinions, and 

provides no support for the proposition Dr. McClellan’s failure to consider certain features of 

Aruba ClearPass or his arbitrary assignment of values are somehow proper. 

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Finally, in Shopify Inc. v. Express Mobile, Inc., the court expressly held that the 

challenged expert “provided a specific analysis explaining why he assigned each particular 

percentage value” in his apportionment analysis. No. CV 19-439-RGA, 2021 WL 4288113, at 

*21 (D. Del. Sept. 21, 2021). The court found that Shopify expert’s opinions were “more than 

impermissible ipse dixit” because the expert “first identified the technical differences between 

Shopify subscription plans. . . . [The expert] considered the patents-in-suit, Shopify documents 

(including advertising and user surveys) and testimony, source code, and actual use of the 

Shopify platform.” Id. Dr. McClellan’s analysis of the third-party ClearPass product, based on 

an analysis of a small subset of “key features” from a ClearPass marketing document, falls well 

short of analysis performed in Shopify, and does not contain “specific analysis explaining why he 

assigned each particular percentage value” for the reasons explained above. 

B. Dr. McClellan Failed to Apportion Out Non-Patented Features Of The 

Accused Products For The ’160 And ’902 Patents.

WSOU does not dispute that Dr. McClellan did not perform any apportionment analysis 

for the ’160 or ’902 patents. Instead, they assert that no such analysis was required because the 

accused “Azure Monitor’s entire value is derived from these patents-in-suit[.]” Dkt. 160 at 13. 

This assertion cannot be squared with the record evidence, including statements of WSOU’s own 

experts. 

For example, WSOU cannot dispute that Azure Monitor’s functionality includes the use 

of “logs” to store data, and that this functionality is not covered by the ’160 patent. WSOU 

challenges one line of questioning during Dr. McClellan’s deposition as “vague[,]” Dkt. 160 at 

14-15, but offers no response regarding Dr. McClellan’s clear, explicit testimony: “I don’t see 

where the making use of logs is anywhere related to the claim language[,]” (McClellan Dep. at 

139:10-12); and “The claim has nothing to do with logs or storage[,]” (id. at 136:22-23). WSOU 

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offers no explanation as to how the “full context” of Dr. McClellan’s testimony could somehow 

change his unequivocal statements that the ’160 patent does not cover logs or storage. Dkt. 160 

at 14. And because there is no dispute that Azure Monitor’s use of logs to store data has not 

been apportioned out of Messrs. Blok’s and Bratic’s royalty base, their reasonable royalty 

opinions must be excluded. See Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1309 (Fed. 

Cir. 2018). 

The same is true with regard to the ’902 patent. WSOU does not dispute that monitoring 

latency and setting alerts are features of the accused Network Performance Monitor and Network 

Watcher, or that the ’902 patent claims say nothing about these functionalities. Therefore, the 

failure to apportion out these features from the proposed royalty base renders Messrs. Blok’s and 

Bratic’s opinions inadmissible. See id. (“When the accused technology does not make up the 

whole of the accused product, apportionment is required.”). 

C. Messrs. Blok’s and Bratic’s Failure to Tie Their Incremental Profits Analysis 

to the Patents-In-Suit or the Accused Products Demands Exclusion.

WSOU does not dispute that the ratio of Microsoft’s company-wide R&D-to-operating 

expenses has no specific tie to the patents-in-suit or the accused products. Accordingly, this ratio 

cannot form the base of a reliable incremental profits analysis. See Uniloc USA, Inc. v. Microsoft 

Corp., 632 F.3d 1292, 1315 (Fed. Cir. 2011). 

Without citing any authority, WSOU suggests that Messrs. Blok and Bratic properly 

relied on Microsoft’s company-wide R&D-to-operating expenses ratio as part of their analysis of 

Georgia Pacific Factor #5 to illustrate “how Microsoft would approach a negotiation in an 

inventor/promoter relationship.” Dkt. 160 at 16, 18. But WSOU’s characterization of its 

experts’ reliance on this ratio for qualitative purposes ignores the unreliable quantitative analysis 

stemming therefrom. WSOU simply ignores the fact that Messrs. Blok’s and Bratic’s 

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methodology would yield an identical split of incremental profits between 

Nokia and Microsoft in any patent license negotiation for any patented technology as long as the 

ratio is calculated over the same time period (as Messrs. Blok and Bratic calculated for both the 

’160 and ’902 patents in this case). WSOU offers no explanation for this absurd conclusion, 

which necessarily follows from Messrs. Blok’s and Bratic’s failure to tie their incremental profits 

analysis to the specific patents and accused technology at issue. 

WSOU’s failure to address this issue dooms its unavailing attempt to distinguish 

Droplets, Inc. v. Yahoo, Inc., Case No. 12-cv-03733-JST, Dkt. 1000 (N.D. Cal. Jan. 12, 2022). 

See Dkt. 160 at 18. Just like the damages expert in Droplets, Messrs. Blok and Bratic used a 

financial metric “to allocate profit for the accused products but did not tie [the metric] to the 

accused product.” Dkt. 160 at 18 (citing Droplets Order at 6-7). WSOU asserts that because 

“Messrs. Blok and Bratic are not dividing revenue for a specific accused product[,]” but instead 

“use Microsoft’s company-wide R&D-to-operating expenses ratio as a proxy for the 

inventor/promoter relationship, no specific allocation of the ratio to revenue for specific products 

is required.” Id. Again, WSOU cites no authority for this assertion, and has not provided any 

basis supporting the reliability of Messrs. Blok’s and Bratic’s incremental profits allocation in 

view of their failure to tie this allocation to the facts of the case. 

Instead of providing a legally supportable basis for their reliance on Microsoft’s R&D-tooperating expenses ratio, WSOU attacks Microsoft’s purported “fail[ure] to produce any other 

documents that discuss how to split the benefit between the parties or for evaluating patent 

contributions.” Dkt. 160 at 16-17 & n.3.2

 Contrary to WSOU’s allegations, there is substantial 

2

 WSOU bears the blame for any purported deficiency. This is the first that Microsoft has heard 

of this “deficiency,” months after discovery has closed. Furthermore, WSOU refused to disclose 

any aspect of its damages theories during discovery, Microsoft can hardly be faulted for 

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evidence in the record on which WSOU’s experts could have relied to analyze Microsoft’s 

royalty practices. Microsoft produced thousands of pages of technical information for the 

accused products (including source code) marketing documentation, and financial information. 

WSOU’s criticism of Microsoft’s productions merely reflects WSOU’s disappointment with the 

fact that it has accused complex products that are sold to sophisticated customers for a host of 

reasons, many of which have nothing to do with the specifically accused functionalities. And in 

any event, nothing about Microsoft’s productions or corporate testimony changes the fact that 

Microsoft’s company-wide R&D-to-operating expenses ratio is an unreliable basis for an 

incremental profits allocation. WSOU cites no authority to the contrary. 

III. CONCLUSION

For the foregoing reasons, this Court should exclude the technical apportionment 

opinions of Dr. McClellan and reasonable royalty opinions of Messrs. Blok and Bratic. 

DATED: May 3, 2022 Respectfully submitted, 

 

/s/ Richard A. Cederoth (by permission) 

Melissa R. Smith, Bar No. 24001351 

melissa@gillamsmithlaw.com 

James “Travis” Underwood, Bar No. 

24102587 

travis@gillamsmithlaw.com

GILLAM & SMITH, LLP 

303 South Washington Avenue 

Marshall, Texas 75670 

Tel: (903) 934-8450 

Fax: (903) 934-9257 

Michael J. Bettinger

mbettinger@sidley.com 

producing ordinary business and marketing documents and related financial information, but not 

whatever specific documents that WSOU now claims for the first time Microsoft should have 

produced. See WSOU’s Response to ROG 7 at 6-7; March 23, 2021 Discovery Hrg., 34:14-22 

(denying request for computation of damages and supplemental response prior to service of 

expert reports). 

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Irene Yang 

irene.yang@sidley.com 

Brooke S. Boll 

brooke.boll@sidley.com 

SIDLEY AUSTIN LLP 

555 California Street, Suite 2000 

San Francisco, CA 94104 

Tel: (415) 772-1200 

Fax: (415) 772-7400 

Richard A. Cederoth 

rcederoth@sidley.com 

John W. McBride 

jwmcbride@sidley.com 

Richard M. Chen 

rchen@sidley.com 

Kevin Robert Oliver

kevin.oliver@sidley.com 

SIDLEY AUSTIN LLP 

1 South Dearborn St. 

Chicago, IL 60603 

Tel: (312) 853-7000 

Fax: (312) 853-7036 

ATTORNEYS FOR MICROSOFT 

CORPORATION 

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CERTIFICATE OF SERVICE 

I, Kevin Robert Oliver, certify that on May 3, 2022, the documents filed with 

the Clerk of Court via the Court’s CM/ECF system under seal in the above-captioned 

cases were subsequently served on all counsel of record by electronic mail. 

DATED: May 3, 2022 /s/ Kevin Robert Oliver

Kevin Robert Oliver 

kevin.oliver@sidley.com 

SIDLEY AUSTIN LLP 

1 South Dearborn St. 

Chicago, IL 60603 

Tel: (312) 853-7000 

Fax: (312) 853-7036 

ATTORNEY FOR MICROSOFT 

CORPORATION 

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