SimpleAir, Inc. v. AWS Convergence Technologies, Inc. et al, No. 2:09-cv-00289 (E.D. Tex. Apr. 4, 2012)

In preparation for the trial in this case, Plaintiff filed its Daubert Motion to Exclude Certain Opinions of Dr. Stephen Wicker (Doc. No. 348). The Court recently issued an order DENYING the motion (Doc. No. 507). The Court now issues this supplemental order to clarify its ruling.

Plaintiff seeks to exclude portions of Dr. Wicker’s testimony on the basis that his opinion contradicts the Court’s Markman order. Specifically, Plaintiff argues that Dr. Wicker improperly equates a “data channel” with a mere network connection, such as a connection to the Internet. Apple responds that Dr. Wicker’s report and deposition testimony correctly applies the Court’s construction. Instead, Apple insists that Plaintiff has lifted Dr. Wicker’s deposition testimony out of context. Apple cites to several examples of Dr. Wicker’s testimony that are consistent with the Court’s construction.

As previously ruled, the motion is DENIED. The Court, in its Markman opinion, construed “data channel” to mean “one or more communication channels or paths for accessing or viewing a category or subcategory of information that is provided by an information source over a communications network.” All witnesses—including Dr. Wicker—must adhere to the Court’s construction.

2But the Court notes that at times during his deposition, Dr. Wicker appears to deviate from the Court’s construction, or at the very least is vague about the distinction between a connection to a network and a connection to a data channel over a network. For example, Dr. Wicker testified that “[i]f you turn on your iPhone, you will be online to the Internet. . . . You will then be able to communicate over a collection of paths with any website that is active and reachable on the Internet. So there will be a data channel between . . . your iPhone . . . and any website that’s providing data on the Internet.” Defendant clarifies through citations to other deposition excerpts that Dr. Wicker’s opinion is that a data channel is a connection “over the Internet extending from the device all the way to the source of the notification.” Def.’s Resp. Doc. No. 380 at 2.

Accordingly, Dr. Wicker will be allowed to testify regarding this portion of his opinion. But Dr. Wicker will not be allowed to testify in a manner suggesting that a mere network connection is a data channel or otherwise misleads or confuses the jury on the construction of the term “data channel.”

It is SO ORDERED.