Motion to Strike Portions of Rebuttal Report 

Case No. 5:17-cv-00220-LHK-NMC 

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MORGAN, LEWIS &

BOCKIUS LLP 

ATTORNEYS AT LAW

SAN FRANCISCO

KEKER, VAN NEST & PETERS LLP 

Robert A. Van Nest (SBN 84065) 

rvannest@keker.com 

Eugene M. Paige (SBN 202849) 

epaige@keker.com 

Justina Sessions (SBN 270914) 

jsessions@keker.com

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com 

Yonatan Even (pro hac vice)

yeven@cravath.com 

825 Eighth Avenue 

New York, New York 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice)

richard.taffet@morganlewis.com 

101 Park Avenue 

New York, NY 10178-0060 

Telephone: (212) 309-6000 

Facsimile: (212) 309-6001 

MORGAN, LEWIS & BOCKIUS LLP 

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Telephone: (202) 739-3000 

Facsimile: (202) 739-3001 

MORGAN, LEWIS & BOCKIUS LLP 

Geoffrey T. Holtz (SBN 191370) 

gholtz@morganlewis.com 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Telephone: (415) 442-1000 

Facsimile: (415) 442-1001 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

vs. 

QUALCOMM INCORPORATED, a Delaware 

corporation, 

Defendant. 

Case No. 5:17-cv-00220-LHK-NMC 

DEFENDANT QUALCOMM 

INCORPORATED’S MOTION TO 

STRIKE PORTIONS OF REBUTTAL 

EXPERT REPORT OF DR. ROBERT 

AKL 

Date: October 18, 2018 

Time: 1:30 p.m. 

Dept.: Courtroom 8, 4th Floor 

Judge: Hon. Lucy H. Koh 

Trial Date: January 4, 2019 

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

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1 Motion to Strike Portions of Rebuttal Report 

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ATTORNEYS AT LAW

SAN FRANCISCO

I. INTRODUCTION 

Qualcomm moves the Court for an order striking Paragraphs 72-86 of the rebuttal report 

of the FTC’s expert Dr. Robert Akl.1

 These paragraphs improperly include new opinions in new 

subject areas and therefore violate the limitations on rebuttal reports in Federal Rule of Civil 

Procedure 26(a)(2)(D)(ii). 

In its Complaint, and in interrogatory responses, the FTC asserts that Qualcomm’s patent 

licensing royalty rates are higher than those of other holders of standard essential patents 

(“SEPs”) who — the FTC asserts — have “comparable portfolios.”2 In his opening expert 

report,3 Dr. Akl sought to support these contentions through only 

4

 

The FTC relied solely on quantitative metrics, offering no qualitative assessment of the relative 

values of Qualcomm’s and others’ patents, nor did it address any specific patents held by 

Qualcomm or any other party. In his Rebuttal Report, however, Dr. Akl discusses 

 This is subject matter that was not addressed by Dr. Akl in his initial expert 

report (or in any other FTC expert report), and concerns matters that were not raised in the 

Qualcomm expert report, by Dr. Jeffrey Andrews,5 that Dr. Akl professes to rebut. 

The Andrews Report from Qualcomm discloses opinions on certain exemplar fundamental 

and important SEPs in Qualcomm’s extensive patent portfolio covering four exemplar areas of 

cellular technology. Dr. Andrews’s opinions did not suggest that these exemplar technology 

 

1

 Rebuttal Expert Report of Dr. Robert Akl, D.Sc., dated July 26, 2018 (the “Akl Rebuttal 

Report”), attached as Exhibit 1 to the Declaration of Geoffrey T. Holtz In Support of Defendant 

Qualcomm Incorporated’s Motion to Strike Portions of Rebuttal Expert Report of Dr. Robert Akl 

(the “Holtz Decl.”). 

2

 Compl. ¶ 60; Plaintiff Federal Trade Commission’s First Supplemental Objections and 

Responses to Defendant Qualcomm’s Interrogatory No. Fourteen (the “FTC Resp. to Interrog. 

No. 14”), attached as Exhibit 2 to the Holtz Decl.

3

 Expert Report of Dr. Robert Akl, D.Sc., dated May 24, 2018 (amended on Aug. 6, 2018) (the 

“Initial Akl Report”), attached as Exhibit 3 to the Holtz Decl. 4 See id. ¶¶ 46-74. 

5

 Expert Report of Dr. Jeffrey Andrews Regarding Qualcomm’s Patent Portfolio, dated June 28, 

2018 (the “Andrews Report”), attached as Exhibit 4 to the Holtz. Decl. 

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areas were the only ones in which Qualcomm holds SEPs, or that Qualcomm is the only owner of 

SEPs in these or other technology areas. Nor did Dr. Andrews or other Qualcomm experts 

undertake a qualitative comparison of the strength and importance of Qualcomm’s SEPs relative 

to the strength and importance of third-party SEPs, which was not an exercise undertaken by any 

of the FTC’s purported experts, including Dr. Akl, and was not identified in the FTC’s Complaint 

or discovery responses as a basis upon which the FTC would rely to prove its contention. 

Nonetheless, Dr. Akl, for the first time in his Rebuttal Report, 

 Holtz 

Decl., Ex. 1 (Akl Rebuttal Report) ¶¶ 72-86. 

This runs afoul of Rule 26(a)(2)(D)(ii), which permits rebuttal reports “solely to contradict 

or rebut evidence on the same subject matter” from an opposing party’s expert. New arguments 

and new evidence are not permitted in a rebuttal expert report. Rule 26 requires all such opinions 

to be presented in opening expert reports. The prejudice to Qualcomm from the FTC’s violation 

of these principles is readily apparent as Qualcomm’s experts have been deprived of any 

opportunity to address or rebut the FTC’s new positons expressed for the first time in the Akl 

Rebuttal Report. 

Qualcomm, accordingly, respectfully submits that the Court should strike from Dr. Akl’s 

Rebuttal Report Paragraphs 72-86 as reflecting improper new opinions rather than rebuttal. 

II. BACKGROUND 

Pursuant to the Case Management Order, entered on April 6, 2018 (Dkt. 678), the FTC 

served the Initial Akl Report on May 24, 2018 (amended on August 6, 2018). In its opening 

expert reports, the FTC did not provide any expert opinions on the strength of any specific 

Qualcomm SEPs, or any third-party SEP, despite obtaining extensive discovery regarding 

Qualcomm’s patents.6

 Among the expert reports Qualcomm served on June 28, 2018 was the 

Andrews Report. Dr. Andrews is a well-recognized and highly qualified expert in cellular 

technology. He addresses certain fundamental and important SEPs in Qualcomm’s extensive 

 

6 See Deposition of Liren Chen (the “Chen Tr.”), taken on April 16, 2018, attached as Exhibit 5 to 

the Holtz Decl. 

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patent portfolio covering four areas of cellular technology to illustrate the continuing importance 

of Qualcomm’s cellular SEPs to recent generations of cellular standards. Dr. Andrews does not 

purport to suggest that these are the only areas of fundamental or important cellular technology 

claimed by Qualcomm patents. Dr. Andrews does not compare Qualcomm’s fundamental patents 

to those that may be owned by others. 

The FTC then served the Akl Rebuttal Report dated July 26, 2018, which is the subject of 

this Motion, purportedly to “respond to the [Andrews Report].” Holtz Decl., Ex. 1 (Akl Rebuttal 

Report) ¶ 1. Below is additional detail on the relevant expert reports. 

A. Dr. Akl’s Initial Report 

The Initial Akl Report states that it is intended to 

 Holtz Decl., Ex. 3 (Initial Akl Report) ¶ 1. 

While Dr. Akl provides (id. ¶¶ 46-74), 

nowhere in the Initial Akl Report does he qualitatively examine any individual patent. Rather, the 

Initial Akl Report 

 (Id.).7

B. The Andrews Report 

The Andrews Report addresses certain specific exemplar SEPs in Qualcomm’s patent 

portfolio covering four areas of cellular technology: Cellular Waveform, Carrier Aggregation, 

HetNets, and Unlicensed Access. Dr. Andrews discussed Qualcomm patents in these technical 

areas relating to 3G, 4G and 5G technologies to address the FTC’s contention that Qualcomm’s 

royalty terms should have decreased over time in light of the FTC’s allegation that Qualcomm has 

a less valuable portfolio of SEPs for these later cellular standards. See Compl. ¶¶ 55-56, 77(c). 

The Andrews Report states clearly that it examined these four technology areas to show examples 

 

7

 Qualcomm will be prepared to establish at trial that this opinion from Dr. Akl should be 

accorded minimal, if any, weight. 

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of foundational and important cellular SEPs owned by Qualcomm. Dr. Andrews did not attempt 

or purport to go beyond the technology areas he used illustratively. Holtz Decl., Ex. 4 (Andrews 

Report) ¶ 3 

 Dr. Andrews also made clear 

that 

 (Id. ¶8). In his deposition, Dr. Andrews confirmed 

that he was not comparing patents owned by Qualcomm to those owned by any third party.8 

C. Dr. Akl’s Rebuttal Report 

Dr. Akl defines his task in his Rebuttal Report as solely 

 (Holtz 

Decl., Ex. 1 (Akl Rebuttal Report) ¶ 1. Dr. Akl’s Rebuttal Report, however, goes far beyond the 

subject matter of the Andrews Report to offer new opinions in paragraphs 72-86 about 

not addressed in Dr. Andrews’s Report. 

Specifically, in paragraphs 72-86 of his Rebuttal Report, Dr. Akl discusses 

. In his Rebuttal Report, Dr. Akl admits that he is addressing 

.

9

 Dr. Akl confirms this in his deposition testimony: 

 

 

8

 Deposition of Dr. Jeffrey Andrews (the “Andrews Tr.”) at 34:8-35:8, taken on Aug. 10, 2018, 

attached as Exhibit 6 to the Holtz Decl. 

9

 Holtz Decl., Ex. 1 (Akl Rebuttal Report) ¶35

. 

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SAN FRANCISCO

Deposition of Dr. Robert Akl (the “Akl Tr.”) at 112:2-18, taken on Aug. 7, 2018, attached as 

Exhibit 7 to the Holtz Decl. 

III. ARGUMENT: THE COURT SHOULD STRIKE ¶¶ 72-86 OF THE AKL 

REBUTTAL REPORT BECAUSE THEY DO NOT “SOLELY CONTRADICT OR 

REBUT” DR. ANDREWS’S EXPERT OPINIONS 

Federal Rule of Civil Procedure 26(a)(2)(D)(ii) permits rebuttal reports that are “intended 

solely to contradict or rebut evidence on the same subject matter” from an opposing party’s 

expert. Fed. R. Civ. P. 26(a)(2)(D)(ii) (emphasis added); see, e.g., Matthew Enter., Inc. v. 

Chrysler Grp. LLC, No. 13-CV-04236-BLF, 2016 WL 4272430, at *1 (N.D. Cal. Aug. 15, 

2016); Theoharis v. Rongen, No. C13-1345RAJ, 2014 WL 3563386, at *1 (W.D. Wash. July 18, 

2014). “The proper function of rebuttal evidence is to contradict, impeach or defuse the impact of 

the evidence offered by an adverse party.” Matthew Enter., 2016 WL 4272430 at *1. “Rebuttal 

testimony is proper as long as it addresses the same subject matter that the initial experts address 

and does not introduce new arguments.” Perez v. State Farm Mut. Auto. Ins. Co., No. C 06-

01962 JW, 2011 WL 8601203, at *8 (N.D. Cal. Dec. 7, 2011). Thus, “rebuttal expert testimony 

is limited to new unforeseen facts brought out in the other side’s case. Rebuttal testimony cannot 

be used to advance new arguments or new evidence, nor are they the place to set forth an alternate 

theory.” Matthew Enter., 2016 WL 4272430 at *2 (citations omitted) (emphasis added). Nor 

does the inclusion of some proper rebuttal insulate an expert’s report where it “offer[s] evidence 

that does not contradict or rebut another expert’s disclosure merely because she also has also 

offered some proper rebuttal.” Theoharis, 2014 WL 3563386 at *3. Thus, “[p]roper expert 

rebuttal cannot explore new areas not raised in initial reports.” TCL Commc’ns Tech. Holdings 

Ltd. v. Telefonaktenbologet LM Ericsson, No. CV 15-02370 JVS, 2016 WL 7042085, at *4 (C.D. 

Cal. Aug. 17, 2016) (emphasis added). 

Were the rule otherwise, a party could do what the FTC has done here – “sandbag” 

Qualcomm by waiting until the final round of expert reports to raise new arguments based on new 

opinions, and deprive the other party of a meaningful opportunity to address them. In such 

circumstances, an order striking the improper rebuttal report and testimony is the appropriate 

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remedy. See Phila. Indemnity Ins. Co. v. Broan-Nutone, L.L.C., No. 12-CV-01811-SC, 2015 WL 

1737697, at *2 (N.D. Cal. Apr. 13, 2015); R & O Constr. Co. v. Rox Pro Int’l Grp., Ltd., No. 

2:09-CV-01749-LRH-LRL, 2011 WL 2923703, at *3-8 (D. Nev. July 18, 2011) (striking entire 

expert rebuttal reports and portions of others because the disputed statements do not speak to new 

unforeseen facts brought out in the initial report, but relate to alternate theories of 

causation); Matthew Enter., 2016 WL 4272430 at *3-7 (granting motions to strike various 

portions of expert rebuttal report). A motion to strike is also appropriate “[w]hen a party 

designates an expert as a rebuttal expert, some of whose testimony is not proper rebuttal 

evidence[.]” Phila. Indem. Ins. Co., 2015 WL 1737697 at *2. In such circumstances, “the Court 

may limit that expert’s testimony, rather than strike it entirely.” Id.

As demonstrated above, the FTC seeks to insert new arguments into this case by 

identifying certain cellular technologies that Dr. Andrews did not address, and opining, for the 

first time in rebuttal, that —even 

though no expert for either party previously discussed these other cellular technologies or the 

substance of any patents covering them. 

The FTC apparently seeks to use these new opinions to support an allegation appearing in 

its complaint, i.e., that Qualcomm and other SEP holders have “comparable portfolios.” See

Compl. ¶ 60 (“OEMs pay Qualcomm far more in royalties than they pay other SEP licensors, 

even those with comparable portfolios of cellular SEPs”); Holtz Decl., Ex. 2 (FTC Resp. to 

Interrog. No. 14) (

). If the FTC intended to present expert opinion on purported relative patent portfolio 

values, it was obligated to present all such opinions in its opening expert reports. See Fed. R. 

Civ. Proc. 26(a)(2)(B)(i). Indeed, in its May 24, 2018 Response to Interrogatory No. 14, 

. Yet he said nothing in his Initial Report—

served the same day—about the patents and technologies at issue, instead limiting his opinion to a 

, without 

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any assessment of the patents’ underlying quality or value. 

Qualcomm’s expert, Dr. Andrews, likewise, did not address the strength of any other 

company’s portfolio. He had no reason to do so because the FTC had offered no opinions of such 

a nature in its initial reports that would need to be rebutted. Rather, Dr. Andrews addressed 

exemplar fundamental and important SEPs in Qualcomm’s patent portfolio covering four specific 

areas of 3G, 4G and 5G cellular technology to address the FTC’s allegation that the value of 

Qualcomm’s SEP portfolio had declined over time because certain early patents expired. See

Compl. ¶¶ 55-56, 77(c). Dr. Andrews made no comparison of the quality or value of patents 

owned by Qualcomm to those owned by any third party. 

With Dr. Akl’s improper “rebuttal,” the FTC has injected new opinions on third parties’ 

patents in technology areas that Qualcomm never mentioned. To the extent Dr. Akl’s new 

opinions are intended to suggest (incorrectly) that Qualcomm’s portfolio 

, or that somehow the importance and fundamental nature of 

Qualcomm’s cellular SEPs is diminished because others also own cellular SEPs in other areas, 

Qualcomm’s experts are left with no opportunity to respond to Dr. Akl’s new opinions and any 

misleading arguments that the FTC might attempt to make based upon them. 

The prejudice to Qualcomm in these circumstances is heightened because the FTC never 

disclosed a theory of liability based on any technologies discussed in ¶¶ 72-86 of the Akl Rebuttal 

Report.10 The FTC did not give Qualcomm notice—either in response to Qualcomm’s discovery 

requests or in the FTC’s opening expert reports—that the FTC would have an expert identify 

. Thus, Qualcomm had no reason to address in its own expert reports the 

previously unmentioned raised by Dr. Akl for the first 

time in rebuttal. Permitting the FTC to inject these new issues into the case for the first time in a 

rebuttal report of an expert witness prejudices Qualcomm’s ability to defend against these new 

 

10 The Akl Rebuttal Report also addresses additional third-party patents that properly should have 

been addressed in Dr. Akl’s Initial Report. Holtz Decl., Ex. 1 (Akl Rebuttal Report) ¶¶ 38-71. 

However, these patents are at least in the same areas of technology addressed by Dr. Andrews, 

unlike those patents discussed in Paragraphs 72-86. 

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arguments. By way of example, if Dr. Akl had included these opinions in his opening report, 

Qualcomm could and would have provided responsive opinions showing that Qualcomm has very 

high-quality and valuable patents in each of these other areas—and indeed has a much more 

valuable portfolio in these other areas than the third parties identified by Dr. Akl. 

In these circumstances, Qualcomm respectfully submits that under Rule 26(a)(2)(D)(ii) 

the Court should strike Paragraphs 72-86 of Dr. Akl’s Rebuttal Report because they offer new 

opinions to support new arguments in new technology areas that are not the subject of the 

Andrews Report, and therefore are improper rebuttal opinions that are not offered “solely to 

contradict or rebut evidence on the same subject matter.” 

IV. CONCLUSION 

For the reasons stated, the portions of the Akl Rebuttal Report (¶¶ 72-86) and the opinions 

expressed therein, which include opinions and matter outside the scope of the Andrews Report, 

should be stricken as improper rebuttal. 

Dated: August 30, 2018 

By: 

MORGAN, LEWIS & BOCKIUS LLP 

/s/ Geoffrey T. Holtz 

 Geoffrey T. Holtz 

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ATTORNEYS AT LAW

SAN FRANCISCO

 Robert A. Van Nest (SBN 84065) 

Eugene M. Paige (SBN 202849) 

Justina Sessions (SBN 270914) 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

Gary A. Bornstein (pro hac vice)

Yonatan Even (pro hac vice)

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019-7475 

Tel.: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

Richard S. Taffet (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP 

101 Park Avenue 

New York, NY 10178-0060 

Tel.: (212) 309-6000 

Fax: (212) 309-6001 

richard.taffet@morganlewis.com 

Willard K. Tom (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Tel.: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

Geoffrey T. Holtz (SBN 191370) 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Tel.: (415) 442-1000 

Fax: (415) 442-1001 

gholtz@morganlewis.com 

 Attorneys for Defendant 

QUALCOMM INCORPORATED 

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