Judge Andrews recently denied a defendant’s Daubert motion, which sought to exclude the plaintiff’s technical expert on a number of grounds. The defendant argued that the expert’s opinions “are too unreliable to be presented to a jury” because the expert “lacks familiarity with the infringing products, relied too heavily on someone else to provide him with relevant segments of source code to review, and used the Court’s claim construction to determine how the products work.” IPLearn, LLC v. Blackboard Inc., C.A. No. 11-876-RGA, Memo. Or. at 1-2 (D. Del. Sept. 29, 2014).
Judge Andrews explained that although the expert in question “never used the allegedly infringing products,” and reviewed only portions of the relevant source code selected by another individual, his opinion was “based on ‘thousands of pages of technical manuals, source code, and depositions transcripts.’” Id. at 2. “Even if [the expert] did not know the qualifications of the individual who selected the pieces of source code, or whether there might be other relevant segments of the source code, he was able to determine whether the sections of code related to the elements relevant to infringement. Therefore, his expert opinion is based on sufficient facts and reliable methods. Whether [the expert] should have consulted the complete source code, and might have missed something that would change his opinion, is an issue for cross-examination and, possibly, contradictory expert testimony by Defendant’s expert.” Id. at 3-4. Indeed, the expert “need not use the product if, as here, he has familiarized himself with it in other ways. Reviewing source code and other materials can be sufficient. [Accordingly] Whether [the expert] should have based his expert opinion on personal use with the product, rather than source code and other materials, is fodder for cross-examination, not a Daubert issue for this Court.” Id. at 2.
Further, Judge Andrews explained that “[w]hether [the expert] relied too heavily on his report in his deposition does not, in my opinion, raise a Daubert issue,” because this argument is essentially the defendant contending that the expert “will be a poor witness.” Id. at 3. Finally, Judge Andrews explained that it was “not self-evident from the deposition transcript cited by Defendant that [the expert’s] reference to the Court’s claim construction was an explanation of how the products work, rather than an application of the construed claims onto the product. . . . [T]he infringement expert[’s] . . . role is to compare the construed claims to the allegedly infringing products. Defendant has not shown that he has not done that.” Id. at 4.