Court Denied Motion To Exclude Expert Testimony That Relied On Consumer Survey To Establish Evidence Of Infringement

Pact XPP Technologies ("Pact") filed a patent infringement action against Xilinx, Inc. ("Xilinx") and other defendants. Xilinx filed a motion to exclude Pact's expert's testimony on inducement. Pact claimed that the defendants induced Xilinx customers to infringe the asserted patents and presented expert witness to offer an opinion that Xilinx actively induces infringement, which in part relied on consumer survey evidence.

The court began it analysis by noting that "[a]n expert witness may provide opinion testimony if '(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issues; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.' Fed. R. Evid. 702. A trial court is 'charged with a 'gatekeeping role,' the objective of which is to ensure that the expert testimony admitted into evidence is both reliable and relevant.' Sundance, Inc., v. DeMonte Fabricating Ltd., 550 F.3d 1356, 1360 (Fed. Cir. 2008).

Xilinx asserted that the expert's opinion is not based on sufficient facts or data because it relied on a consumer survey of some Xilinx customers, but the evidence did not show that customers used the features in an infringing way. Xilinx also asserted that the evidence did not show that any direct infringement occurred in the United States.

The court disagreed: "[t]he Court finds that there are sufficient facts and data to support Dr. Tredennick's active inducement opinion. If Dr. Tredennick testifies that any use of the RocketIO, Embedded EMAC or Integrated PCI features built into Xilinx's accused products directly infringes PACG's patents, then the customer survey evidence could support a finding of direct infringement. Furthermore, based on the representations of the nature of the survey evidence, there appears to be at least some evidence that direct infringement occurred in the United States. Any weakness in Dr. Tredennick's opinion or the evidence he relies upon can be tested...