United States District Court, E.D. Virginia, Alexandria Division
For Rembrandt Social Media, LP, Plaintiff, Counter Defendant: Ahmed Jamal Davis, LEAD ATTORNEY, Daniel Robert Gopenko, Richard Alex Sterba, Fish & Richardson PC (DC), Washington, DC; Ruffin B. Cordell, Fish & Richardson, Washington, DC.
For Facebook, Inc., Defendant: Stephen Richard Smith, LEAD ATTORNEY, Jonathan Garwood Graves, Phillip Edward Morton, Cooley LLP (VA), Reston, VA.
For AddThis, Inc., Counter Claimant: Christopher Charles Campbell, LEAD ATTORNEY, Stephen Crawford Crenshaw, Stephen Patrick McBride, Cooley LLP (VA), Reston, VA.
T. S. Ellis, III, United States District Judge.
At issue in this patent infringement suit is whether the opinion of plaintiff's expert, James Malackowski, satisfies the requirements of Rule 702, Fed. R. Evid., and Daubert.  For the reasons that follow, plaintiff's proffered expert testimony on damages fails to qualify as reliable expert testimony under Rule 702 and Daubert and must be excluded.
Plaintiff, Rembrandt Social Media, LP (" Rembrandt" ), a non-producing Virginia limited partnership with its principal place of business in Pennsylvania, is the owner by assignment of the two patents at issue: U.S. Patent No. 6,415,316 (" the '316 patent" ) and U.S. Patent No. 6,289,362 (" the '362 patent" ). Rembrandt alleges that defendant, Facebook, Inc. (" Facebook" ), a Delaware corporation with its headquarters in California, infringed both patents by the use of its widely-used Facebook website.
The '316 Patent
The '316 patent, issued July 2, 2002, is entitled " Method and Apparatus for Implementing a Web Page Diary." In the words of the patent's abstract, the '316 patent describes a " method and apparatus to create a 'diary' containing multimedia references to contents of websites." Rembrandt alleges Facebook directly infringes claim 4 of the '316 patent, which depends from claim 1, and claims 20 and 26, both of which depend from claim 17.
Claim 1 of the '316 patent describes a method for organizing information and displaying this information on the diary page. In essence, the method of claim 1
involves a server sending a diary program to the user's web browser, along with content data, a page design specifying the presentation of the content data, and configuration information for controlling the way in which the diary page will be displayed, including privacy level information--namely to whom the diary page will be displayed. Once in the user's system, the diary program generates and assembles the cohesive diary page by dynamically combining the content data received from the server with the web page design, also received from the server, according to the configuration information. The cohesive diary page thus assembled is then displayed by the diary program in the user's web browser in a manner consistent with the privacy level information. Claim 4, the allegedly infringed claim, depends from claim 1 and simply adds that " [t]he new diary information is for changing content of the diary page without changing a general appearance of the diary page."
Allegedly infringed claims 20  and 26  of the '316 patent are dependent from claim 17, which describes an apparatus, i.e., a computer software program, that is used essentially to accomplish claims 1 and 20.
The '362 Patent
The '362 patent, entitled " System and Method for Generating, Transferring, and Using an Annotated Universal Address," describes a method and computer program product for displaying content on a web page. Rembrandt asserts that Facebook infringes claims 8, 20, and 21  of
the '362 patent. Claim 8 is a dependent claim that depends from independent claim 1," and claims 20 and 21 are independent claims. Claims 1 and 20 are substantially similar and are essentially directed at a method and computer program product, respectively, for displaying a content object through a page definition generated by an " applet," or computer program. The '362 patent, similar to the '316 patent, describes a method of using a computer program, running on the user's own browser, that generates a complete web page for that user, based on content, page definitions, and presentation information sent from the third-party server. More particularly, the method and computer program may be described as follows: first, the user sends a request for access to some " object" of content. In response to that request, a program identifies the " annotated universal address" (AUA) for the location of that content object, identifies how that content object should be presented on the page (presentation context), and sends ...