IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

HEADWATER RESEARCH LLC,

Plaintiff,

v.

SAMSUNG ELECTRONICS CO., LTD and 

SAMSUNG ELECTRONICS AMERICA, INC.,

Defendants.

Case No. 2:23-CV-00103-JRG-RSP

JURY TRIAL DEMANDED 

SAMSUNG’S SUR-REPLY TO HEADWATER’S MOTION 

TO STRIKE CERTAIN OPINIONS OF SAMSUNG’S DAMAGES EXPERT 

M. RAY PERRYMAN, PH.D. (DKT. 182)

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EXHIBIT INDEX AND NOTES

Exhibit Description

4 Excerpts from the Expert Report of Stephen E. Dell, CVA, dated September 26, 

2024

5 Excerpts from the Expert Report of Erik de la Iglesia, dated September 26, 

2024

* Emphasis added unless otherwise noted. 

** Form objections are omitted from deposition transcript quotations unless otherwise noted. 

*** In this brief, “Headwater” refers to Plaintiff and its purported predecessors. 

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I. Dr. Perryman’s Apportionment Satisfies Federal Circuit Requirements

In its reply, Headwater relies on Apple Inc. v. Wi-LAN Inc. to assert “The Federal Circuit 

has held that an expert relying on a license must show it is comparable, and if it is a portfolio 

license the expert must apportion to the patents in suit.” Reply at 1 (citing Apple Inc. v. Wi-LAN 

Inc., 25 F.4th 960, 974 (Fed. Cir. 2022)). Dr. Perryman satisfies both requirements. 

As required by Federal Circuit law, Dr. Perryman relies on Dr. Foster to establish the 

technical comparability of the licenses. Dkt. 182-1 at ¶¶ 155, 160. Then, Dr. Perryman 

acknowledges that the licenses require apportionment to render them 

economically comparable to the hypothetical negotiation for the patents in suit. Dkt. 182-1 at 

¶ 195. 

Headwater attempts to distinguish its own expert’s testimony arguing that Mr. Dell has not 

“assumed” that “the three patents in suit are of the same value.” Reply at 2. Instead, it argues that 

Mr. Dell “relies on the technical opinion that the three patents in suit have the same or similar 

scope, implicate similar elements of Samsung’s accused products, and provide the same or similar 

benefits.” Reply at 2. Headwater’s response confirms the similarity of the experts’ approaches: 

Dr. Perryman relies on Samsung’s technical expert to confirm licensed patents are technically 

comparable, implicate the same products, and provide the same or similar benefits. Resp. at 3 

(citing Dkt. 182-1 ¶¶ 152, 156), Dkt. 182-1 ¶¶ 155, 160. To the extent either party disputes the 

sufficiency of the technical analysis from the technical expert or the sufficiency of the support 

provided to the damages experts, all such disputes are issues to be tested on cross-examination as 

going to weight, not admissibility. Bio-Rad Labs., Inc. v. 10X Genomics Inc., 967 F.3d 1353, 1374 

(Fed. Cir. 2020) (“the ‘degree of comparability’ . . . is a ‘factual issue[ ] best addressed by cross 

examination and not by exclusion.’”).

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II. Dr. Perryman’s Reliance on Dr. Foster’s Technical Opinions Satisfies Rule 702

Headwater has moved to strike Dr. Perryman’s apportionment of the 

agreements, arguing that he failed to conduct a patent-specific analysis. In response, 

Samsung clarified that its technical expert, Dr. Foster, confirmed that the agreements were both 

technically comparable and covered the same accused products at issue here. Resp. at 3. Dr. 

Perryman explicitly disclosed that he relied on Dr. Foster’s opinions regarding technical 

comparability of the patents asserted in this case and those licensed under the 

 agreements. Dkt. 182-1 at ¶¶ 155, 160. 

In reply, Headwater did not challenge the admissibility or appropriateness of Dr. 

Perryman’s reliance on Dr. Foster. Instead, it characterized Dr. Perryman’s analysis as 

“assum[ing] that each licensed family is worth the same.” Reply at 2. However, the record does 

not support the claim that Dr. Perryman made any such assumption. Rather, Dr. Perryman 

reasonably relied on Dr. Foster’s technical opinion that the patent families licensed in the 

 agreements are technically comparable to the patent families asserted in this 

case. If Headwater contends that the licensed patent families provide more or less benefit than 

each other or the asserted patent family, that issue is more appropriately directed to Samsung’s 

technical expert Dr. Foster on cross examination, as an issue going to the weight of Dr. Foster’s 

underlying analysis provided to Dr. Perryman. It was reasonable (and routine) for Dr. Perryman 

to rely on the technical opinions of Dr. Foster here, and Headwater has identified no specific 

unreliability in Dr. Perryman’s methodology requiring exclusion. 

III. Samsung Does Not Intend to Offer Testimony Regarding Other Litigations at Trial

Both Samsung and Headwater are well aware of this Court’s Standard Limine Order No. 

13. As stated in its response to Headwater’s motion, it has “no intention to violate this Court’s 

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standing order on motions in limine and would seek leave if Samsung believes Headwater opened 

a door on such issues.” Resp. at 8. Nonetheless, Headwater continues to raise the issue. 

In his report, Dr. Perryman referenced certain other litigations as the factual basis for his 

conclusion that a license to the patents in suit would not provide the 

. Dkt. 182-1 ¶¶ 189, 197. Under Rule 26, Dr. Perryman is 

legally required to disclose all “facts and data considered by the witness in forming [his opinions],”

which includes other Headwater litigations. Furthermore, Federal Rule of Evidence 703 permits 

experts to rely on otherwise inadmissible facts or data if such reliance is customary in the field. 

Headwater has not argued that it was unreasonable for Dr. Perryman to consider 

 Even if Headwater had made such an argument, it would 

be an issue for cross-examination rather than a basis for exclusion. Accordingly, Headwater has 

not provided a compelling justification for exclusion at this stage. 

IV. Dr. Perryman’s Noninfringing Alternatives Opinions Are Relevant and Properly 

Disclosed

Headwater now argues that Dr. Perryman’s opinions on noninfringing alternatives should 

be excluded for lack of relevance. Reply at 4 (“. . . Dr. Perryman’s opinions on non-infringing 

alternatives [are] useless to the jury.”). Dr. Perryman has established the relevance of his and Dr. 

Foster’s opinions on noninfringing alternatives in that they will put downward pressure on 

Samsung’s position at the hypothetical negotiation. Dkt. 182-1 ¶ 260. Headwater offers no 

explanation why this opinion would be misleading or confusing to a jury. To the extent Headwater 

disagrees with Dr. Perryman’s conclusions about the availability of noninfringing alternatives, it 

is free to address that disagreement through cross-examination. 

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Headwater complains that Dr. Perryman does not specifically quantify the negative impact

of the noninfringing alternatives. Reply at 4. Headwater does not, however, cite any authority 

requiring Dr. Perryman to provide such a quantification, nor has it rebutted the case law Samsung 

provided confirming that experts are permitted to provide opinions considering non-infringing 

alternatives like those of Dr. Perryman. See, e.g., Astrazeneca AB v. Apotex Corp., 782 F.3d 1324, 

1334-35 (Fed. Cir. 2015) (“When an infringer can easily design around a patent and replace its 

infringing goods with non-infringing goods, the hypothetical royalty rate for the product is 

typically low.”); Riles v. Shell Exploration & Prod. Co., 298 F.3d 1302, 1312 (Fed. Cir. 2002). 

Notably, Headwater’s own expert, Mr. Dell, employs the same approach it criticizes in Dr. 

Perryman’s report. In Mr. Dell’s analysis of noninfringing alternatives, he concludes that “the 

lack or absence of available, acceptable non-infringing alternatives discussed above would have 

an upward impact on my reasonable royalty determination,” yet he does not quantify that 

upward impact. Ex. 4 (Dell Rpt.) ¶ 289. Headwater has not provided a legal basis for exclusion 

of Dr. Perryman’s opinions for lack of specificity, and Headwater’s criticisms of Dr. Perryman’s 

opinions in this regard at best go to weight, not admissibility. 

Headwater next argues prejudice, claiming that it was not permitted to explore the 

noninfringing alternatives. Again, Headwater cites no legal basis supporting its contention that 

Samsung was required to disclose its noninfringing alternatives earlier than it did. Moreover, 

Headwater’s own experts actually do appear to have investigated and responded to Samsung’s 

proffered noninfringing alternatives. See Ex. 5 (de la Iglesia Rpt.) ¶¶ 1278-87, Ex. 4 (Dell Rpt.)

¶¶ 277-90. Therefore, even if Headwater had a valid legal basis for its objection, that objection 

would now be untimely and waived. 

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Finally, Headwater contends that the jury will be unable to determine whether Samsung 

“can easily design around” the patents in suit or “which alternatives, if any, are adequate.” Reply 

at 4-5. This argument fails here for two reasons. First, it is Dr. Foster—not Dr. Perryman—who 

provided the technical opinions regarding the availability and acceptability of noninfringing 

alternatives. As such, Headwater’s objection is improperly directed at Dr. Perryman. Second, the 

question of commercial availability and acceptability of noninfringing alternatives is a factual 

issue for the jury to decide, and Headwater is free to explore it through cross-examination. See 

Elbit Sys. Land and C4I Ltd. v. Hughes Network Sys., LLC, 2017 WL 2651618, at *18 (E.D. Tex. 

June 20, 2017) (the dispute over NIAs “is one that will be resolved by the jury when they determine 

which alternatives, if any, are adequate noninfringing substitutes, and what affect that may have 

on any damages award”). Headwater’s objection to Samsung’s proposed noninfringing 

alternatives ultimately concerns the weight of the evidence, not its admissibility. 

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Dated: November 20, 2024 Respectfully submitted,

By: /s/ Thomas H. Reger II

Ruffin B. Cordell

TX Bar No. 04820550

Michael J. McKeon

DC Bar No. 459780

mckeon@fr.com

Jared Hartzman 

DC Bar No. 1034255

hartzman@fr.com

FISH & RICHARDSON P.C.

1000 Maine Avenue, SW, Ste 1000

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Telephone: (202) 783-5070

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GA Bar No. 427603

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GA Bar No. 141862

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GA Bar No. 546590

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Vivian C. Keller (pro hac vice)

GA Bar No. 651500

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FISH & RICHARDSON P.C.

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1180 Peachtree St. NE, Fl. 21

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Telephone: (404) 892-5005

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Telephone: (212) 765-5070

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Melissa R. Smith

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GILLAM & SMITH, LLP

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QUINN EMANUEL URQUHART &

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Telephone: (415) 875-6600

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ATTORNEYS FOR DEFENDANTS

SAMSUNG ELECTRONICS CO., LTD. AND

SAMSUNG ELECTRONICS AMERICA, INC.

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was filed 

electronically in compliance with Local Rule CV-5 on November 20, 2024. As of this date, all 

counsel of record had consented to electronic service and are being served with a copy of this 

document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).

/s/ Thomas H. Reger II

Thomas H. Reger II

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