NXP USA Inc v. Impinj Inc

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE NXP USA, INC., and NXP B.V., CASE NO. 2:20-cv-01503-JHC Plaintiffs, ORDER RE: DAUBERT HEARING v. IMPINJ, INC., Defendant.

14 In accordance with its obligations under Daubert to ensure the reliability of expert testimony, the Court hereby requests oral argument on NXP’s motion to exclude certain opinions of Lauren R. Kindler. Dkt. # 279. In particular, the Court has questions about the apportionment methodology used by Kindler and her reliance on Impinj employee, Ron Oliver (issue two in NXP’s motion). The Court intends to hold oral argument at 8:30 a.m. on the first day of trial (likely Thursday, June 8, 2023). The Court anticipates that oral argument will be brief. Each side will have 15 minutes. In addition, at Impinj’s option, the Court will permit Kindler to submit a declaration discussing her apportionment methodology and/or testify at the hearing (in person or by Zoom). Impinj should submit any optional declaration and indicate whether Kindler intends to testify no later than June 6th, 2023.

1 The parties should be prepared to discuss the following questions: 2 1) How, if at all, does Kindler’s reliance on Oliver differ from Haas’s reliance on Ralf 3 Kodritsch? Why was it proper for Haas to accept Kodritsch’s estimation of relative 4 importance of features, but not proper for Kindler to do so? Does Kodritsch explain 5 how he arrived at his apportionment conclusions (e.g., why he gave some features 6 zero value but other features great value)? The Court is most interested in this 7 question.

8 2) NXP essentially relied on an “equal apportionment” approach. To the extent that 9 Impinj and Kindler believe that this approach overvalued the accused features, what 10 other apportionment methodology could Kindler have used to reach a quantitative 11 estimate of the value of the accused features?

12 3) How does Oliver’s deposition testimony in the co-pending litigation (cited in NXP’s 13 reply brief) about his inability to quantitatively apportion value to features apply to 14 his apportionment assessments in this case?

15 4) Would a damages expert reasonably rely on technical apportionment assessments 16 from a party’s employee, even if the employee is not designated as an expert? Fed. 17 R. Evid. 703.

18 5) Can Oliver offer his apportionment opinions as lay opinions? See In re Google 19 AdWords Litig., No. 5:08-CV-3369 EJD, 2012 WL 28068, at *5 (N.D. Cal. Jan. 5, 20 2012) (“[J]ust because the underlying facts and data are technical in nature does not 21 transform the information into ‘expert testimony’ when those facts are within the 22 personal knowledge and experience of the company’s employee.”).

23 6) Did NXP have an opportunity to depose Oliver after receiving Kindler’s report? l The Court has already concluded that Kindler’s qualitative opinions are sufficiently |{reliable. Kindler may argue, for example, that Haas’s royalty rate is too high, that Haas’s equal apportionment of value among features is improper, or that Haas otherwise failed to account for || the value of features like True3D. The Court is only interested in whether Kindler’s quantitative apportionment methodology is sufficiently reliable.

6 The Court will provide a ruling shortly after the Daubert hearing.

7 Dated this 2nd day of June, 2023. ¥. Chur 9 SS 10 John H. Chun United States District Judge 1]