IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT, 

Plaintiff, 

v. 

DELL TECHNOLOGIES INC., 

DELL INC., EMC CORPORATION, 

AND VMWARE, INC., 

Defendants. 

Civil Action No.: 6:20-cv-00480-ADA-DTG 

Civil Action No.: 6:20-cv-00481-ADA-DTG 

Civil Action No.: 6:20-cv-00486-ADA-DTG 

JURY TRIAL DEMANDED 

PLAINTIFF’S OBJECTIONS TO AND APPEAL FROM MAGISTRATE JUDGE’S 

REPORT AND RECOMMENDATION DENYING PLAINTIFF’S MOTION TO 

EXCLUDE CERTAIN OPINIONS IN THE EXPERT REPORTS OF 

 BENJAMIN F. GOLDBERG, PH.D. AND KEVIN JEFFAY, PH.D. 

REGARDING INVALIDITY OF U.S. PATENT NO. 9,164,800 AND 

LICENSING OPINIONS OF TAJANA ROSING, PH.D. AND KEVIN JEFFAY, PH.D. 

Plaintiff respectfully objects to and appeals Magistrate Judge Gilliland's Report and 

Recommendation (“R&R”) denying Plaintiff’s Motion to Exclude Certain Opinions in the Expert 

Reports of Benjamin F. Goldberg, Ph.D. and Kevin Jeffay, Ph.D. Regarding Invalidity of U.S. 

Patent No. 9,164,800 (the “’800 patent”) and Licensing Opinions of Tajana Rosing, Ph.D. and 

Kevin Jeffay, Ph.D., as it contains erroneous findings of fact and contradicts the pertinent law and 

procedures.1See, e.g., Baylor Health Care Sys. v. Equitable Plan Servs., 955 F. Supp. 2d 678, 689 

(N.D. Tex. 2013); see also Fed. R. Civ. P. 72(a) (“The district judge in the case must consider 

timely objections and modify or set aside any part of the order that is clearly erroneous or is 

contrary to law.”) The R&R is clearly erroneous as the opinions of Defendants’ experts, Drs. 

 

1

 Pursuant to the R&R, dated January 30, 2023, (Dkt. 345), the Court’s reasoning is stated on the 

record of the hearing held on January 27, 2023. The hearing transcript is not yet available. 

Submitted herewith is the Declaration of Jonathan K. Waldrop, dated February 10, 2023 (“Waldrop 

Declaration”). “Ex.” refers to exhibits attached to the Waldrop Declaration. 

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Goldberg and Jeffay, 

. 

A. The R&R Should Have Excluded Drs. Goldberg and Jeffay’s Invalidity Opinions 

Regarding the ’800 Patent As They Are Unreliable 

 

This analysis by Drs. Goldberg and Jeffay does not satisfy the requisite element-by-element 

analysis under the law. As a result, that methodology is flawed – and the R&R is wrong in not 

excluding their opinions – because it is well-settled law that “an accused infringer cannot . . . . 

establish invalidity merely by pointing to similarities between an accused product and the prior 

art.” Communique Lab’y, Inc. v. Citrix Sys., Inc., 889 F.3d 735, 742 (Fed. Cir. 2018).2 In this case, 

 

2

See also In re Omeprazole Pat. Litig., 536 F.3d 1361, 1377 (Fed. Cir. 2008) (“It is well established, 

however, that ‘practicing the prior art’ is not a defense to infringement.”); Tivo, Inc. v. EchoStar 

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Drs. Goldberg and Jeffay did precisely what Communique prohibits: 

 That purported analysis is precisely 

the type of comparison of prior art to the accused product that the Federal Circuit has rejected. 

 

Commc’s Corp., 516 F.3d 1290, 1311-12 (Fed. Cir. 2008) (affirming the district court decision that 

excluded the expert’s testimony based on opposing party’s alleged infringement theories).

3

 

 

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 Thus, Defendants’ experts’ opinions are unreliable as a matter of law. 

 Indeed, a Chevy 

and a Cadillac might be considered “functionally identical” in that both GM cars can drive from 

point A to point B – but they are not identical, and their differences are relevant on many levels. 

The two cars share numerous characteristics, but the luxury brand is certainly different 

 

 

4

 

 

 

 

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. 

 and the R&R is 

clearly erroneous in not excluding their opinions on invalidity. Rather, as in General Electric Co. 

v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), “there is simply too great an 

analytical gap between the data and the opinion proffered.”).7 Accordingly, Defendants’ experts 

 

7

See also Magnetar Techs. Corp. v. Six Flags Theme Parks Inc., No. 07-127-LPS-MPT, 2014 U.S. 

Dist. LEXIS 15674, at *38 (D. Del. Feb. 7, 2014) (providing only “data and a conclusion, with the 

chasm between not bridged by any analysis” is insufficient to sustain an expert’s opinions); Novico 

Inc. v. Garmin Int’l, Inc., No. 2:16-CV-190-JRG-RSP, 2017 WL 3750252, at *4 (E.D. Tex. July 29, 

2017), adopted by Navico Inc. v. Garming Int’l, Inc., 2017 WL 3837282, at *2 (E.D. Tex. Aug. 31, 

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should not be permitted to baldly testify, as they have opined, 

 

B. The R&R Should Have Excluded Drs. Rosing and Jeffay’s Licensing Opinions 

Because They Are Unreliable 

The R&R also erroneously failed to exclude Drs. Rosing and Jeffay’s licensing opinions. 

Their opinions that 

 are bare, 

unsupported assertions, 

 Accordingly, neither expert had any basis to support their 

opinions that these licenses are comparable. Thus, the R&R should have excluded Drs. Jeffay and 

Rosing’s opinions . 

 

2017) (product did not qualify as prior art where defendant failed to meet its burden to show there 

were no relevant differences between system described in manual and system sold years earlier); 

XpertUniverse, Inc. v. Cisco Sys., Inc., 2013 WL 1702159, at *1 (D. Del. Feb. 25, 2013. 

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C. Conclusion 

For these reasons, Plaintiff respectfully requests that this Court sustain Plaintiff’s 

objections and vacate Magistrate Judge Gilliland’s Report and Recommendation denying 

Plaintiff’s Motion to Exclude Certain Opinions in the Expert Reports of Benjamin F. Goldberg, 

Ph.D. and Kevin Jeffay, Ph.D. Regarding Invalidity of U.S. Patent No. 9,164,800 and Licensing 

Opinions of Tajana Rosing, Ph.D. and Kevin Jeffay, Ph.D. 

Dated: February 10, 2023 RESPECTFULLY SUBMITTED, 

By: /s/ Jonathan K. Waldrop 

Jonathan K. Waldrop (CA Bar No. 297903) 

(Admitted in this District) 

jwaldrop@kasowitz.com 

Darcy L. Jones (CA Bar No. 309474) 

(Admitted in this District) 

djones@kasowitz.com 

Marcus A. Barber (CA Bar No. 307361) 

(Admitted in this District) 

mbarber@kasowitz.com 

John W. Downing (CA Bar No. 252850) 

(Admitted in this District) 

jdowning@kasowitz.com 

Heather S. Kim (CA Bar No. 277686) 

(Admitted in this District) 

hkim@kasowitz.com 

ThucMinh Nguyen (CA Bar No. 304382) 

(Admitted in this District) 

tnguyen@kasowitz.com

Chen Jia (CA Bar No. 281470) 

(Admitted in this District) 

cjia@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

333 Twin Dolphin Drive, Suite 200 

Redwood Shores, California 94065 

Telephone: (650) 453-5170 

Facsimile: (650) 453-5171 

Paul G. Williams (GA Bar No. 764925) 

(Admitted in this District) 

pwilliams@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

1230 Peachtree Street N.E., Suite 2445 

Atlanta, Georgia 30309 

Telephone: (404) 260-6080 

Facsimile: (404) 260-6081 

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Hershy Stern (NY Bar No. 4631024) 

(Admitted pro hac vice) 

hstern@kasowitz.com 

Howard L. Bressler (NY Bar No. 2487379) 

(Admitted pro hac vice) 

hbressler@kasowitz.com 

Joshua A. Whitehill (NY Bar No. 4766473) 

(Admitted pro hac vice) 

jwhitehill@kasowitz.com 

Julianne Laporte (NY Bar No. 5547906) 

(Admitted pro hac vice) 

jlaporte@kasowitz.com 

Noah P. Dorman (DC Bar No. 1779821) 

(Admitted pro hac vice) 

ndorman@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

1633 Broadway 

New York, NY 10019 

Telephone: (212) 506-1700 

Facsimile: (212) 506-1800 

Mark D. Siegmund (TX Bar No. 24117055) 

mark@swclaw.com 

Craig D. Cherry (TX Bar No. 24012419) 

craig@swclaw.com 

Justin W. Allen (TX Bar No. 24081977) 

justin@swclaw.com 

Melissa S. Ruiz (TX Bar No. 24128097) 

melissa@swclaw.com 

STECKLER WAYNE CHERRY & LOVE 

PLLC 

8416 Old McGregor Road 

Waco, TX 76712 

Telephone: (254) 651-3690 

Facsimile: (254) 651-3689 

Gregory Phillip Love (TX Bar No. 24013060) 

greg@swclaw.com 

STECKLER WAYNE CHERRY & LOVE 

PLLC 

107 East Main Street 

Henderson, TX 75652 

Telephone: (903) 212-4444 

Facsimile: (903) 392-2267 

Attorneys for Plaintiff 

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT 

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CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing instrument was served or 

delivered electronically via email to all counsel of record, on this 

/s/ Jonathan K. Waldrop 

Jonathan K. Waldrop 

17th day of February, 2023, via the

Court's CM/ECF System.

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