EMC Corp. v. Pure Storage, Inc.

154 F.Supp.3d 81

EMC Corporation, EMC International Company, and EMC Information Systems International, Plaintiffs,

v.Pure Storage, Inc., Defendant.

Civil Action No. 13–1985–RGA

United States District Court, D. Delaware.

Signed February 11, 2016

Jack B. Blumenfeld, Esq., Rodger D. Smith II, Esq., Jeremy A. Tigan, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; Joshua A. Krevitt, Esq. (argued), Paul E. Torchia, Esq. (argued), GIBSON, DUNN & CRUTCHER LLP, New York, NY; Stuart M. Rosenberg, Esq., GIBSON, DUNN & CRUTCHER LLP, Palo Alto, CA; Chris R. Ottenweller, Esq., Matthew H. Poppe, Esq., Jesse Y. Cheng, Esq., ORRICK, HERRINGTON & SUTCLIFFE LLP, Menlo Park, CA; Alyssa M. Caridis, ORRICK, HERRINGTON & SUTCLIFFE LLP, Los Angeles, CA; T. Vann Pearce, Jr., Esq., ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C.; Paul T. Dacier, Esq., Krishnendu Gupta, Esq., William R. Clark, Esq., Thomas A. Brown, Esq., EMC CORPORATION, Hopkinton, MA, attorneys for Plaintiffs.

John W. Shaw, Esq., David M. Fry, Esq., SHAW KELLER LLP, Wilmington, DE; Robert A. Van Nest, Esq., Matthew Werdegar, Esq. (argued), R. Adam Lauridsen, Esq., Corey Johanningmeier, Esq. (argued), David Rizk, Esq., KEKER & VAN NEST LLP, San Francisco, CA; Joseph Fitzgerald, Esq., PURE STORAGE, INC. Mountain View, CA, attorneys for Defendant.

MEMORANDUM OPINION

ANDREWS, U.S. DISTRICT JUDGE:

Before the Court are various motions filed by Defendant Pure Storage, Inc. (“Pure”) and by Plaintiffs EMC Corporation, EMC International Company, and EMC Information Systems International (collectively, “EMC”). Pure brings three separate motions presently under consideration: Motion for Summary Judgment (D.I. 198) and related briefing (D.I. 199, 258, 298); Motion to Exclude Expert Opinions and Testimony (D.I. 204) and related briefing (D.I. 205, 240, 296); and Motion to Strike Untimely Evidence and Expert Opinions (D.I. 302), related briefing (D.I. 303, 321, 324), and related letters (D.I. 345, 347). EMC brings four separate motions presently under consideration: Motion for Partial Summary Judgment, and to Exclude Expert Testimony, Regarding Pure Storage's Hypothetical Non–Infringing Alternatives (D.I. 206) and related briefing (D.I. 207, 243, 292); Motion to Exclude Certain Opinions of Dr. James Plank (D.I. 211) and related briefing (D.I. 212, 255, 294); Motion for Summary Judgment of Direct Infringement of Claims 1, 7, and 16 of U.S. Patent No. 7,434,015 (D.I. 214) and related briefing (D.I. 215, 252, 300); and Motion for Leave to File Sur–Reply in Opposition to Motion for Summary Judgment of Invalidity of U.S. Patent No. 7,434,015 (D.I. 317) and Pure's response (D.I. 326). The Court heard oral argument on December 14, 2015. (D.I. 327).

For the reasons that follow: Pure's motion for summary judgment (D.I. 198) is GRANTED IN PART and DENIED IN PART. Summary judgment is DENIED with respect to non-infringement of the asserted claims of the '464 and '556 patents and invalidity of the '015 and '556 patents. Summary judgment is GRANTED with respect to non-infringement of the asserted claims of the '187 patent. Pure's motion to exclude opinions and testimony of EMC's '464 patent infringement expert (D.I. 204) is DENIED. Pure's motion to strike evidence and expert opinions regarding EMC's attempt to swear behind the Krapp reference (D.I. 302) is DENIED. Pure's motion to exclude opinions and testimony of EMC's damages expert (D.I. 204) is DENIED. EMC's motion for summary judgment of direct infringement of claims 1, 7, and 16 of the '015 patent (D.I. 214) is GRANTED. EMC's motion for leave to file a sur-reply (D.I. 317) is GRANTED. EMC's motion to exclude certain opinions of Pure's '556 patent expert (D.I. 211) is GRANTED IN PART and DENIED IN PART. EMC's motion for partial summary judgment and to exclude expert testimony regarding Pure's non-infringing alternatives (D.I. 206) is DENIED.

I. BACKGROUND

EMC Corporation filed a complaint on November 26, 2013 alleging that Pure infringed U.S. Patent Nos. 6,904,556 (“the '556 patent”) ; 7,373,464 (“the '464 patent”) ; 7,434,015 (“the '015 patent”) ; and 8,375,187 (“the '187 patent”).¹ (D.I. 1). On June 6, 2014, EMC filed an amended complaint, joining EMC International Company, and EMC Information Systems International as plaintiffs. (D.I. 37). EMC is seeking injunctive and equitable relief and damages in the form of reasonable royalties and lost profits. (D.I. 37 at 14–15). Pure answered the amended complaint on June 13, 2014. (D.I. 38). The Court held a Markman hearing on December 16, 2014 (D.I. 108) and subsequently issued a claim construction ruling (D.I. 115, 121). It became apparent at the December 14, 2015 hearing on the motions presently under consideration that the parties' disputes with regard to certain of these motions related to their disagreement regarding the scope of several claim terms. (D.I. 327 at 125–37). The parties thereafter submitted supplemental claim construction briefing on those terms. (D.I. 332, 333, 334, 335). The Court heart oral argument on the supplemental claim construction on January 8, 2016 (D.I. 353) and issued an opinion on February 2, 2016 (D.I. 362).

The motions under consideration raise infringement and validity issues with respect to the asserted '464,'015, '556 and '187 patents. The '464 and '015 patents disclose systems and methods for providing efficient data storage that eliminate redundancy using deduplication techniques. (D.I. 92 at 18, 19; see '464 patent, 1:19–21; '015 patent, 1:18–20). Deduplication reduces the demand for storage space in a data storage system by ensuring that only a single copy of unique data is stored. (D.I. 215 at 10). The '556 patent discloses systems and methods of data storage involving parity-based fault tolerance techniques. ('556 patent, 1:6–8). The '187 patent discloses apparatuses and methods related to scheduling data transfers to and from data storage devices in flash-based data storage systems. ('187 patent, 1:5–7).

II. LEGAL STANDARDS

A. Summary Judgment

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those “that could affect the outcome” of the proceeding, and “a dispute about a material fact is ‘genuine’ if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The burden on the moving party may be discharged by pointing out to the district court that there is an absence of evidence supporting the non-moving party's case. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460–61 (3d Cir.1989). A non-moving party asserting that a fact is genuinely disputed must support such an assertion by: “(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials; or (B) showing that the materials cited [by the opposing party] do not establish the absence ... of a genuine dispute....” Fed.R.Civ.P. 56(c)(1).

When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007). A dispute is “genuine” only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247–49, 106 S.Ct. 2505. If the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.

B. Motions to Exclude Expert Opinions and Testimony

1. Motions to Exclude Under Federal Rule of Evidence 702 and Daubert

Federal Rule of Evidence 702 sets out the requirements for expert witness testimony and states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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 issue; (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. The Third Circuit has explained:

Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit. Qualification refers to the requirement that the witness possess specialized expertise. We have interpreted this requirement liberally, holding that “a broad range of knowledge, skills, and training qualify an expert.” Secondly, the testimony must be reliable; it “must be based on the ‘methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation’; the expert must have ‘good grounds' for his o[r] her belief. In sum, Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (19

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