Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TACTION TECHNOLOGY, INC., Case No.: 21-CV-812 TWR (JLB)

12 Plaintiff, ORDER (1) GRANTING 13 v. DEFENDANT’S EX PARTE MOTION FOR LEAVE TO FILE MOTION 14 APPLE INC., FOR SUMMARY JUDGMENT OF 15 Defendant. NO WILLFULNESS; (2) DENYING SUMMARY JUDGMENT OF NO 16 WILLFULNESS; (3) GRANTING IN 17 PART AND DENYING IN PART PLAINTIFF’S EX PARTE MOTION 18 FOR LEAVE TO SUPPLEMENT ITS 19 RECORD ON APPORTIONMENT; (4) DENYING PLAINTIFF’S 20 MOTION TO BIFURCATE; AND 21 (5) GRANTING MOTIONS TO FILE UNDER SEAL 22 23 (ECF Nos. 529, 557, 579, 580, 582, 583, 584, 589) 24 25 Presently before the Court is Defendant Apple Inc.’s (“Apple’s”) Ex Parte Motion 26 Motion for Leave to file Motion for Summary Judgment of No Willfulness (“Apple Mot.,” 27 ECF No. 557), as well as Plaintiff Taction Technology, Inc.’s (“Taction’s”) Response in 28 Opposition to (“Taction Opp’n,” ECF No. 581) Apple’s Ex Parte Motion; Apple’s Motion 1 for Summary Judgment of No Willfulness (“MSJ,” ECF No. 557-1), as well as Taction’s 2 Response in Opposition to (“MSJ Opp’n,” ECF No. 581-3 (public), ECF No. 580-1 3 (sealed)) Apple’s Proposed Motion for Summary Judgment; and Taction’s Notice of 4 Supplemental Evidence in Support of Its Response in Opposition to Apple’s Motion for 5 Summary Judgment (ECF No. 594), as well as Apple’s Objection to (ECF No. 595) 6 Taction’s Notice of Supplemental Evidence. Also before the Court is Taction’s Ex Parte 7 Motion for (1) Leave to Supplement Its Record on Apportionment and, Alternatively, (2) 8 Bifurcation (“Taction Mot.,” ECF No. 584 (public), ECF No. 583 (sealed)), as well as 9 Apple’s Response in Opposition to (“Apple Opp’n,” ECF No. 590) the Motion. The Court 10 heard oral arguments on August 27, 2026. (See ECF No. 593.) 11 Additionally before the Court are Taction’s Motion to File Under Seal (ECF No. 12 579) certain documents filed in support of its Response in Opposition to Apple’s Ex Parte 13 Motion for Leave to File Motion for Summary Judgment of No Willfulness; Taction’s 14 Motion to File Under Seal (ECF No. 582) portions of as well as certain documents filed in 15 support of its Ex Parte Motion to (1) Leave to Supplement Its Record on Apportionment 16 and, Alternatively, (2) Bifurcation; and Apple’s Renewed Motion to File Under Seal (ECF 17 No. 589) certain documents filed in support of its Ex Parte Motion for an Additional 18 Deposition of Dr. Allison Mariko Okamura and For Leave to File an Additional Motion to 19 Strike. The Court takes the Parties’ Motions to Seal under submission without oral 20 argument pursuant to Civil Local Rule 7.1(d)(1). 21 Having carefully considered the relevant law, the Parties’ argument, and the record, 22 the Court GRANTS Taction’s Ex Parte Motion for Leave to File Motion for Summary 23 Judgment of No Willfulness and DENIES Taction’s Motion for Summary Judgment of No 24 Willfulness. Additionally, the Court GRANTS IN PART and DENIES IN PART 25 Taction’s Motion for Leave to Supplement Its Record on Apportionment, DENIES 26 Taction’s Motion to Bifurcate, and GRANTS the Parties’ Motions to Seal. 27 / / / 28 / / / 1 APPLE’S EX PARTE MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT (AND MOTION FOR SUMMARY JUDGMENT) 2 3 I. Background 4 On August 11, 2026, the Court granted Apple’s Motion in Limine (“MIL”) 2 in 5 which Apple moved to exclude the following with respect to Taction’s willfulness 6 allegations: (1) evidence relating to a pre-issuance review of Taction’s Kannon 7 headphones; (2) evidence of a post-suit review of Corsair’s headphones; and (3) evidence 8 of patent listings on Taction’s website. (See ECF No. 545 (“MILs Or.”) at 30–31, ECF 9 No. 507 (“Apple MILs”) at 27–32.) Thereafter, while the Parties were preparing their 10 proposed jury instructions, a dispute arose as to whether willfulness was still a “live issue” 11 in this case. (See Apple Mot. at 3.) In sum, the Parties appear to agree that “Taction has 12 dropped its pre-suit willfulness infringement case entirely and will proceed only on a theory 13 of post-suit willfulness.” (See id.) Apple disputes, however, whether Taction has sufficient 14 evidence to support its theory of post-suit willfulness. (See id at 5–6; see generally MSJ.) 15 On August 18, 2026, Apple filed an Ex Parte Motion Seeking Leave to File a Motion 16 for Summary Judgment of No Willful Infringement. (See Apple Mot.) Apple attached its 17 proposed Motion for Summary Judgment to its Ex Parte Motion. (See MSJ.) On August 18 24, 2026, Taction filed a Response in Opposition to Apple’s Ex Parte Motion (see Taction 19 Opp’n) along with its proposed Response in Opposition to Apple’s Motion for Summary 20 Judgment (see MSJ Opp’n). 21 II. Legal Standards 22 A. Leave to File an Additional Motion for Summary Judgment 23 Unless a different time is set by local rule or the court orders otherwise, a party may 24 file a motion for summary judgment at any time until 30 days after the close of all 25 discovery.” Fed. R. Civ. P. 56(b). Thus, leave to file an additional1 motion for summary 26 27 1 The Court has already considered two of Apple’s motions for summary judgment: one pre-appeal 28 1 judgment at this stage in the case requires a showing of “good cause.” See Fed. R. Civ. P. 2 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”) 3 “Rule 16(b)'s ‘good cause’ standard primarily considers the diligence of the party seeking 4 the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) 5 (citations omitted) (quoting Fed. R. Civ. P. 16 advisory committee's notes (1983 6 amendment)); see Greenawalt v. Sun City W. Fire Dist., 250 F. Supp. 2d 1200, 1206–07 7 (D. Ariz. 2003) (applying Rule 16(b) in the context of an additional motion for summary 8 judgment). “Although the existence or degree of prejudice to the party opposing the 9 modification might supply additional reasons to deny a motion, the focus of the inquiry is 10 upon the moving party's reasons for seeking modification.” Johnson, 975 F.2d at 604. 11 B. Summary Judgment 12 A party may move for summary judgment as to a claim or defense or part of a claim 13 or defense. Fed. R. Civ. P. 56(a). Summary judgment is appropriate where “the movant 14 shows that there is no genuine dispute as to any material fact and the movant is entitled to 15 judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 16 317, 322 (1986). Although materiality is determined by substantive law, “[o]nly disputes 17 over facts that might affect the outcome of the suit . . . will properly preclude the entry of 18 summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986). A 19 dispute is “genuine” only “if the evidence is such that a reasonable jury could return a 20 verdict for the nonmoving party.” Id. When considering the evidence presented by the 21 parties, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences 22 are to be drawn in his favor.” Id. at 255. 23 The initial burden of establishing the absence of a genuine issue of material fact falls 24 on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden 25 by “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, 26 and admissions on file, together with the affidavits, if any,’ which it believes demonstrate 27 the absence of a genuine issue of material fact.” Id. “When the party moving for summary 28 judgment would bear the burden of proof at trial, ‘it must come forward with evidence 1 which would entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 2 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 3 (quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)). 4 Once the moving party satisfies this initial burden, the nonmoving party must 5 identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S. 6 at 324. This requires “more than simply show[ing] that there is some metaphysical doubt 7 as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 8 586 (1986). Rather, to survive summary judgment, the nonmoving party must “go beyond 9 the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, 10 and admissions on file,’ designate ‘specific facts’” that would allow a reasonable fact finder 11 to return a verdict for the non-moving party. Celotex, 477 U.S. at 324; see also Anderson, 12 477 U.S. at 248. Accordingly, the non-moving party cannot oppose a properly supported 13 summary judgment motion by “rest[ing] upon mere allegations or denials of his pleading.” 14 Anderson, 477 U.S. at 256. 15 III. Discussion 16 A. Apple’s Ex Parte Motion for Leave 17 Taction opposes Apple’s Ex Parte Motion for Leave on grounds that it “arrives over 18 three years after the 2023 deadline for summary judgment motions. (Taction Opp’n at 2 19 (citing ECF No. 281 at 1).) Apple generally does not dispute Taction’s arguments 20 concerning timeliness. (See generally Apple Mot.) Instead, Apple argues the Court should 21 allow it to file its belated Motion for Summary Judgment for four reasons: 22 First, Apple argues it was diligent because it filed its Ex Parte Motion for Leave 23 “promptly upon learning on August 11, 2026, . . . that Taction had dropped its pre-suit 24 willfulness case and intended to proceed solely on post-suit willfulness.” (Apple Mot. at 25 4.) Considering it is undisputed that Apple has been on notice of Taction’s intent to pursue 26 post-suit willfulness (see generally id.), the Court is unpersuaded. 27 Second, Apple argues there is no unfair prejudice to Taction in allowing its Motion 28 for Summary Judgment to proceed because “it is Taction’s own choice to drop pre-suit 1 willfulness and pursue post-suit willfulness on the eve of trial that drives Apple’s current 2 request.” (Id. at 5.) Not so. The Court granted Apple’s request to exclude certain evidence 3 concerning Taction’s pre-suit willfulness suit. (See MILs Or. at 30–31.) Thus, it was not 4 Taction’s “own choice” to thereafter solely pursue post-suit willfulness; rather, it was 5 Apple who set it in motion via its MIL 2. (See Apple MILs at 27–32.) 6 Third, Apple argues that addressing this issue now will “streamline” the issues for 7 presentation at trial because “there is no reason for the jury to hear about post-suit 8 willfulness based solely on Apple not pulling the accused products off the market after the 9 Complaint was filed.” (Apple Mot. at 5 (citing Arbmetrics, LLC v. Dexcom Inc., No. 18- 10 cv-00134-JLS-KSC, 2019 WL 12473781, at *4 (S.D. Cal. Feb. 19, 2019) (acknowledging 11 that “continuing post-suit manufacturing and sales . . . cannot be the sole evidence to 12 support a willful infringement claim”)).) For the reasons explained below with respect to 13 Apple’s Motion for Summary Judgment, see infra Section III.B, the Court rejects this 14 argument. 15 Finally, Apple argues that “post-suit willfulness will introduce significant 16 evidentiary issues at trial that can be avoided if Apple’s summary judgment is granted.” 17 (Apple Mot. at 6.) To resolve these evidentiary concerns, the Court excludes from trial 18 any evidence to support Taction’s post-suit willfulness allegations to the extent it concerns 19 Apple’s conduct during a specified period of time. See supra Section III.B. 20 Although the Court is inclined to agree with Taction that “Apple’s proposed motion 21 raises no changed circumstances that warrants granting leave now,” (Taction Opp’n at 2), 22 it is the Court’s preference to resolve issues on the merits. Thus, the Court considers 23 Apple’s proposed Motion for Summary Judgment of No Willfulness. 24 B. Apple’s Motion for Summary Judgment 25 Apple contends that “Taction’s only specific allegation of post-suit willfulness 26 concerns Apple’s outside counsel’s purchase of the Corsair HS60 headphone after this case 27 was filed.” (MSJ at 7 (citing ECF No. 490-7 at 52).) Apple then concludes that, because 28 the Court excluded this evidence by granting Apple’s MIL 2, “Taction’s remaining post- 1 suit willfulness case rests entirely on Apple’s continued sale of its accused products.” (Id. 2 at 7 (citations omitted).) In response, Taction argues that additional evidence exists to 3 support its post-suit willfulness theory. (See MSJ Opp’n at 7.) Taction also argues that 4 Apple’s application of a heightened standard to show willfulness is outdated and incorrect. 5 (See id.) 6 The Court begins with the Parties’ arguments concerning the standard for 7 willfulness. Specifically, the Parties dispute whether “egregious conduct” is required. (See 8 MSJ Opp’n at 8–9.) Taction argues it is not. (Id. at 9 (citations omitted).) Indeed, the 9 Federal Circuit has clarified that it did not “inten[d] to create a heightened requirement for 10 willful infringement.” SRI Int'l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323, 1330 (Fed. Cir. 11 2021). Rather, “the concept of willfulness requires a jury to find no more than deliberate 12 or intentional infringement.” Id. (citing Eko Brands, LLC v. Adrian Rivera Maynez Enters., 13 Inc., 946 F.3d 1367, 1378 (Fed. Cir. 2020)) (additional citation and internal quotations 14 omitted)); see also Fate Therapeutics, Inc. v. Shoreline Biosciences, Inc., 665 F. Supp. 3d 15 1214, 1227 (S.D. Cal. 2023) (rejecting defendants’ motion to dismiss a claim for willful 16 infringement on grounds that plaintiffs failed to allege “egregious conduct”). The Court 17 therefore agrees with Taction that “egregious conduct” is not required to prove willfulness. 18 Accordingly, to establish willfulness, Taction need only show that Apple “had a specific 19 intent to infringe at the time of the challenged conduct.” Provisur Techs., Inc. v. Weber, 20 Inc., 119 F.4th 948, 955 (Fed. Cir. 2024), cert. denied, 145 S. Ct. 1181 (2025) (quoting 21 BASF Plant Sci., LP v. Commonwealth Sci. and Indus. Rsch. Org., 28 F.4th 1247, 1274 22 (Fed. Cir. 2022)). 23 Taction contends that the following evidence supports a finding of post-suit 24 willfulness: (1) that Apple designed, manufactured, marketed, and launched twenty new 25 Accused Products and began selling standalone Taptic Engines directly to consumers after 26 the complaint was filed; (2) the fact that Apple made no attempt to design around the 27 Asserted Patents (i.e., that Apple did not implement any of the non-infringing alternatives 28 it identified since the complaint was filed); and (3) that Apple failed to internally circulate 1 the Asserted Patents among its designers. (MSJ Opp’n at 13–17.) Taction argues that this 2 evidence, along with expert testimony at trial (see id. at 17–18), is sufficient to demonstrate 3 post-suit willfulness. (See id. at 20 (“Willfulness in this case will turn on what Apple’s 4 own witnesses say about what Apple knew and what Apple decided across five years and 5 twenty product launches.”) 6 According to the Federal Circuit, “the factual components of the willfulness question 7 should be resolved by the jury.” WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 8 2016) (citing Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1250 (Fed. Cir. 1989) 9 (“Willfulness of behavior is a classical jury question of intent. When trial is had to a jury, 10 the issue should be decided by the jury.”)) (additional citations omitted). Considering post- 11 filing conduct alone can serve as the basis of a jury’s willfulness finding, see Apple Inc. v. 12 Samsung Elecs. Co., 258 F. Supp. 3d 1013, 1027 (N.D. Cal 2017); accord Wirtgen Am., 13 Inc. v. Caterpillar, Inc., No. 1:17-CV-00770-JDW-MPT, 2024 WL 51010, at *7 (D. Del. 14 Jan. 4, 2024), and considering Taction sets forth evidence other than Apple’s continued 15 infringement as support for its willfulness allegations, the Court FINDS summary 16 judgment as to willfulness inappropriate.2 17 IV. Conclusion 18 For the reasons stated above, the Court GRANTS Apple’s Ex Parte Motion Seeking 19 Leave to File a Motion for Summary Judgment of No Willful Infringement and DENIES 20 Apple’s Motion for Summary Judgment of No Willfulness. 21 / / / 22 23 2 Apple is by no means precluded from moving for judgment as a matter of law pursuant to Federal 24 Rule of Civil Procedure 50 if the evidence Taction presents at trial is insufficient to establish deliberate or 25 intentional infringement. See Provisor Technologies, Inc. v. Weber, Inc., 119 F.4th 948, 956 (Fed. Cir. 2024) (citing Bayer v. Healthcare LLC v. Baxalta Inc., 989 F.3d 964, 988 (Fed. Cir. 2021) (“We have held 26 ‘knowledge of the asserted patent[s] and evidence of infringement is necessary, but not sufficient, for a finding of willfulness.’”)). The Court may address the appropriateness of any awarded damages related 27 to post-suit willfulness, in particular, from the date the Court granted Apple’s motion for summary judgement to the date the Federal Circuit issued its opinion reversing the grant of summary judgement, 28 1 TACTION’S EX PARTE MOTION FOR (1) LEAVE TO SUPPLEMENT ITS RECORD ON APPORTIONMENT AND, ALTERNATIVELY, (2) 2 BIFURCATION 3 I. Background 4 On August 11, 2026, the Court granted Apple’s request to exclude the technical 5 apportionment opinions of Taction’s expert, Dr. James Oliver. (MILs Or. at 28–29.) Dr. 6 Oliver’s excluded opinions included “attempts to isolate the contribution of the [A]sserted 7 [P]atents to Apple’s [A]ccused [P]roducts and to [Taction’s] Corsair HS60 headset.” (ECF 8 No. 491 (“Apple MILs”) at 21 (citing ECF No. 298-2 (“Oliver Corr. Rep.”) ¶¶ 1233–45).) 9 Regarding Apple’s Accused Products, Dr. Oliver relied upon testimony from an 10 Apple witness, Dr. Jere Harrison. (See MILs Or. at 28.) In a Daubert motion, Apple argued 11 Dr. Oliver’s opinion was unreliable because Dr. Harrison referred only to the iPhone 7 (i.e., 12 a non-accused and untested product). (Apple MILs at 21.) As support, Apple pointed the 13 Court to Docket No. 298-3, a seven-page excerpt of Dr. Harrison’s 2023 deposition 14 testimony, which Apple alleged Dr. Oliver relied upon. (See MILs Or. at 29 (citations 15 omitted).) Taction disputed that Dr. Harrison’s testimony was limited to the iPhone 7. (See 16 id. at 28–29 (citations omitted).) In granting Apple’s request to exclude Dr. Oliver’s 17 technical apportionment opinions as to the Accused Products, the Court explained that 18 “[w]ithout additional context surrounding Dr. Harrison’s testimony, based on the record 19 before it, the Court is unable to determine whether [Dr.] Harrison exclusively discusses the 20 iPhone 7.” (Id. at 29.) 21 Regarding Taction’s Corsair HS60 headset (the “Licensed Corsair Product”), Apple 22 argued “Dr. Oliver’s attempt to isolate the contributed of the Asserted Patents to the 23 Licensed Corsair Product—which forms part of the basis of his ‘technical apportionment’ 24 opinion, upon which Dr. [Patrick] Kennedy relies—is unreliable because Dr. Oliver relies 25 upon the non-disclosed testing and unrecorded conversations with Dr. Biggs.” (Id. at 29 26 (citing Apple MILs at 21).) In granting Apple’s Daubert motion, the Court explained that 27 “based on the record before it, the Court is unable to determine whether Dr. Biggs’ tests 28 . . . were reliable.” (Id. (citations omitted).) Further, because Dr. Kennedy relied on Dr. 1 Oliver’s technical apportionment opinions in reaching his reasonable royalty opinions (see 2 Apple MILs at 22–24), the Court additionally granted Apple’s motion to exclude Dr. 3 Kennedy’s opinions. (MILs Or. at 29–30.) 4 On August 25, 2026, Taction filed its Ex Parte Motion for (1) Leave to Supplement 5 Its Record on Apportionment and, Alternatively, (2) Bifurcation. (See Mot.) That same 6 day, Taction served upon Apple supplemental expert reports containing the following: 7 1) Dr. Oliver’s citations to additional excerpts from Dr. Harrison’s deposition 8 testimony outside of ECF No. 298-3 (i.e., to show that Dr. Harrison’s 9 testimony was not limited to the iPhone 7); 10 2) Dr. Oliver’s supplemental technical apportionment opinions performing his 11 own testing to support his pre-existing Q-Factor analysis (i.e., to show Dr. 12 Oliver’s opinions no longer rely on Dr. Biggs’); and 13 3) Dr. Kennedy’s supplemental reasonable royalty opinions (i.e., incorporating 14 Dr. Oliver’s supplemental opinions) 15 (See Mot. at 6–7 (citations omitted).) Apple filed its Response in Opposition to Taction’s 16 Ex Parte Motion on August 26, 2026. (See Opp’n.) 17 II. Legal Standards 18 A. Leave to Serve Supplemental Expert Reports 19 Belated disclosures, including amended expert reports that are governed by Federal 20 Rule of Civil Procedure 26(e), are permitted provided the failure to timely disclose was 21 substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1). In the context of expert 22 opinions regarding the apportionment of damages in patent infringement cases, district 23 courts have exercised discretion to allow a party to serve supplemental expert reports after 24 excluding an expert’s opinion in a Daubert ruling. See, e.g., IP Holding, LLC v. GoPro, 25 Inc., No. 3:17-cv-04738-WHO, 2020 WL 5106845, at *15 (N.D. Cal. Aug. 31, 2020); Ford 26 Motor Co. v. Versata Software, Inc., No. 15-11624, 2018 WL 4282740, at *7 (E.D. Mich. 27 Sept. 7, 2018); Prism Technologies, LLC v. Sprint Spectrum L.P., No. 8:12CV123, 2015 28 WL 350503, at *2–3 (D. Neb. Jan. 23, 2015); Digital Reg of Texas, LLC v. Adobe Systems, 1 Inc., No. C 12-1971 CW, 2014 WL 4090550, at *4 (N.D. Cal. Aug. 19, 2014); Golden 2 Bridge Technology v. Apple, Inc., No. 5:12-CV-04882-PSG, 2014 WL 2194501, at *7 3 (N.D. Cal. May 18, 2014). In deciding whether to permit a damages expert’s supplemental 4 apportionment opinions, courts may consider (1) the prejudice or surprise to the party 5 against whom the testimony is offered; (2) the ability to cure any prejudice; (3) the potential 6 for trial disruption if the testimony is allowed; (4) the erring party's bad faith or willfulness; 7 and (5) the importance of the excluded evidence. See Prism Technologies, 2015 WL 8 350503, at *1 (citing Sibley v. Sprint Nextel Corp., No. 08–2063–KHV, 2013 WL 1819773, 9 at *7 (D. Kan. April 30, 2013)). 10 B. Bifurcation 11 Federal Rule of Civil Procedure 42(b) provides that “[f]or convenience, to avoid 12 prejudice, or to expedite and economize, the court may order a separate trial of one or more 13 separate issues, claims, crossclaims, counterclaims, or third-party claims.” The party 14 seeking bifurcation has the burden of demonstrating that judicial economy would be served 15 and that no party would be prejudiced by separate trials. See Spectra–Physics Lasers, Inc. 16 v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D. Cal. 1992); Princeton Biochemicals, Inc. v. 17 Beckman Instruments, Inc., 180 F.R.D. 254, 256 (D.N.J. 1997), dismissed on other grounds 18 185 F.3d 878 (Fed. Cir. 1998); Novopharm Ltd. v. Torpharm, Inc., 181 F.R.D. 308, 310 19 (E.D.N.C. 1998); Real v. Bunn-O-Matic Corp., 195 F.R.D. 618, 620 (N.D. Ill. 2000) (all 20 holding same). In sum, “[a] decision on bifurcation must be based on the circumstances of 21 the individual case at issue, and is left to the discretion of the district court.” Gardco Mfg., 22 Inc. v. Herst Lighting Co., 820 F.2d 1209, 1212 (Fed. Cir. 1987). Rule 42(b) further 23 provides that “[w]hen ordering a separate trial, the court must preserve any federal right to 24 a jury trial.” Thus, bifurcation “may not properly be resorted to unless it clearly appears 25 that the issue to be retried is so distinct and separable from the others that a trial of it alone 26 may be had without injustice.” Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S. 494, 27 500 (1931) (collecting cases). For patent infringement cases, while bifurcation of liability 28 / / / 1 and damages may be appropriate under certain circumstances, it is generally the exception, 2 not the rule. See Real, 195 F.R.D. at 620–21 (collecting cases). 3 III. Discussion 4 A. Taction’s Ex Parte Motion for Leave to Serve Supplemental Expert Reports 5 Taction argues it should be granted leave to serve its second supplemental expert 6 reports because the Court’s exclusion of Dr. Oliver’s and Dr. Kennedy’s opinions “was 7 based on deficiencies in the record, not on the methodological flaw that might require a 8 supplement containing a new theory.” (Taction Mot. at 6.) Taction contends that Dr. 9 Oliver’s and Dr. Kennedy’s methodologies would remain the same and the supplement 10 “would introduce no new product features, no new comparable license, no new 11 macroeconomic variables[,] and no new reasonable royalty calculations.” (Id. at 11.) 12 Taction further contends “[i]t will make Dr. Oliver and Dr. Kennedy available for 13 deposition on a schedule the Court sets, will not oppose responsive supplemental reports, 14 and does not object to Apple raising any further Daubert challenge by motion in limine.” 15 (Id. at 17–18.) In response, Apple argues that Taction fails to prove substantial justification 16 or harmlessness for submitting its belated disclosures. (See Apple Opp’n at 10.) Apple 17 contends that Taction’s proposed supplement goes beyond curing the record, and that 18 Taction may not “rehabilitate” its expert with new opinions or a new methodology simply 19 because the Court excluded its prior ones. (See id. at 9–11.) 20 1. Dr. Oliver’s Second Supplemental Expert Report Regarding Technical Apportionment 21 22 Regarding Dr. Oliver’s citations to additional excerpts from Dr. Harrison’s 23 deposition testimony, Apple argues that the newly cited portions do not provide the 24 required context because “they do not even mention the Q-factor of any accused or 25 unaccused product, much less the effect of ferrofluid damping on the Q-factor.” (Id. at 13.) 26 But this stretches beyond the problem Apple identified in its original Daubert motion. (See 27 Apple MILs at 21.) Apple specifically argued that Dr. Oliver’s citations to Dr. Harrison’s 28 deposition testimony were conclusory and incomplete because the citations “refer[red] 1 only to developmental iPhone 7 models, which are not accused products and have not been 2 analyzed by Dr. Oliver.” (Id.) Thus, the Court granted Apple’s Daubert motion because 3 it was “unable to determine whether [Dr.] Harrison exclusively discusses the iPhone 7.” 4 (MILs Or. at 29 (citation omitted).) Based on the additional testimony provided, Dr. 5 Harrison discussed additional—and accused—products. (See ECF No. 583-1 (“Harrison 6 Depo.”) at 7:10–13 (“I worked on the haptic module in the iPhone 7 Plus, the iPhone 8 7 Plus, the iPhone 11 Pro, the iPhone 12 Pro and 12 Pro Max, the Apple Watch that was 8 launched two years ago . . .”); see also ECF No. 583-2 (“Oliver Supp. Rep.”) at 26 9 (“Separately, and although my opinion does not depend on it, Dr. Harrison’s quality-factor 10 testimony was in my view not limited to the iPhone 7.”).) Accordingly, the Court finds 11 that the supplementation to “cure the record” is harmless. The Court therefore GRANTS 12 leave for Taction to serve Dr. Oliver’s second supplemental expert report to the extent his 13 opinions rely on additional excerpts from Dr. Harrison’s deposition testimony. 14 Regarding Dr. Oliver’s supplemental technical apportionment opinions performing 15 his own testing, Apple argues that Dr. Oliver substituted a brand-new, never-disclosed 16 experiment for Dr. Biggs’ testing. (Apple Opp’n at 12.) The fact that Dr. Oliver performed 17 his own form of testing does not alone establish that it is unreliable. However, the Court 18 must still determine whether the proponent of the expert testimony has put forth sufficient 19 evidence to establish that his methodology is sound and the results reliable. See i4i Ltd. 20 P’ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed. Cir. 2010). Doing so would necessitate 21 additional depositions as well as an opportunity for Apple to submit an additional Daubert 22 challenge. Considering trial is only a couple of weeks away, the Court agrees with Apple 23 that this supplement is neither substantially justified nor harmless. Thus, the Court 24 DENIES leave for Taction to serve Dr. Oliver’s second supplemental report to the extent 25 his opinions rely on his new testing. 26 2. Dr. Kennedy’s Second Supplemental Expert Report 27 Regarding Dr. Kennedy’s supplemental reasonable royalty opinions, the same issue 28 is once again before the Court: whether the opinions upon which Dr. Kennedy relies—that 1 is, Dr. Oliver’s new technical apportionment opinions—are reliable. (See Taction Mot. at 2 7; MILs Or. at 30–31.) The Court GRANTS leave for Taction to serve Dr. Kennedy’s 3 second supplemental report only to the extent Dr. Kennedy’s opinions rely on the portions 4 of Dr. Oliver’s second supplemental report the Court found harmless. See supra Section 5 III.A.1. 6 B. Taction’s Motion for Bifurcation 7 Taction alternatively argues that “[if] the Court concludes that the supplemental 8 reports cannot be completed and tested before September 14, the answer . . . is try liability 9 now and damages later.” (Mot. at 18.) Apple opposes bifurcation, arguing that liability 10 and damages are substantially interwoven. (Opp’n at 16.) Apple points out, for example, 11 that “the entire basis of Dr. Oliver’s apportionment (ferrofluid versus the closed-loop 12 controller in the Accused Products, and ferrofluid versus the ’139 notch filter in the Corsair 13 product) implicates the core infringement dispute (whether the accused products have a 14 highly damped output).” Considering the relatedness between the issues of liability and 15 damages in this case, the Court DENIES Taction’s Motion to Bifurcate. See Gasoline 16 Prods. Co., 283 U.S. at 500. 17 IV. Conclusion 18 For the reasons stated above, the Court GRANTS IN PART and DENIES IN 19 PART Taction’s Motion for Leave to Serve Supplemental Expert Reports. The Court also 20 DENIES Taction’s Motion to Bifurcate. 21 THE PARTIES’ MOTIONS TO SEAL 22 I. Taction’s Motions to Seal (ECF Nos. 579, 582) 23 Taction contends that “compelling reasons” exist to file under seal the following 24 documents filed in support of its Opposition to Apple’s Ex Parte Motion for Leave to File 25 Motion for Summary Judgment of No Willfulness (the “Opposition”): Exhibit A (Taction’s 26 Opposition to Apple’s Motion for Summary Judgment of No Willfulness; Exhibit 1 27 (Apple’s Supplemental Responses to Taction’s Second Set of Interrogatories (Nos. 9, 10, 28 12), served in this action on January 6, 2023; and Exhibit 3 (Deposition transcript of Dr. 1 Shingo Yoneoka, (Vol. II), taken in this action on May 22, 2026, as well as portions of its 2 Ex Parte Motion for (1) Leave to Supplement Its Record on Apportionment and, 3 Alternatively, (2) Bifurcation (the “Ex Parte Motion”) and accompanying Exhibits 1, 3, 4 and 4. (See ECF No. 579 at 2; ECF No. 582 at 2). According to Taction, Exhibits A, 1, 5 and 2 filed in support of its Opposition as well as the identified portions of its Ex Parte 6 Motion and accompanying Exhibits 1, 3, and 4 contain Apple’s confidential business 7 information or confidential technical information concerning Apple’s accused products, 8 such as product code names. (ECF No. 579 at 3–4; ECF No 582 at 3–4.) Taction’s counsel 9 has confirmed that Apple does not oppose this Motion to Seal. (ECF No. 579 at 4; ECF 10 No 582 at 5.) 11 Upon a close review of the limited proposed redactions, the Court concludes that 12 Taction has demonstrated compelling reasons to file under seal Exhibits A, 1, and 2 filed 13 in support of its Opposition as well as the identified portions of its Ex Parte Motion and 14 accompanying Exhibits 1, 3, and 4. See, e.g., Orthopaedic Hosp. v. Encore Med., L.P., 15 No. 19-CV-970 JLS (AHG), 2021 WL 1966121, at *2 (S.D. Cal. Apr. 12, 2021). 16 Accordingly, the Court GRANTS Taction’s Motion to Seal (ECF Nos. 579, 582). 17 II. Apple’s Renewed Motion to Seal (ECF No. 589) 18 Apple contends that “compelling reasons” exist to file under seal Apple’s Renewed 19 Motion to File Under Seal (ECF No. 589) the following documents filed in support of its 20 Ex Parte Motion for an Additional Deposition of Dr. Allison Mariko Okamura and For 21 Leave to File an Additional Motion to Strike: Exhibits 1, 2, 3, and 7. (See ECF No. 589 at 22 3.) Apple contends that “Taction has informed Apple that the proposed redactions contain 23 confidential technical information concerning Taction’s product research and 24 development.” (Id.) Upon a close review of the limited proposed redactions, the Court 25 concludes that Apple has demonstrated compelling reasons to file under seal Exhibits 1, 2, 26 3, and 7. See, e.g., Orthopaedic Hosp., 2021 WL 1966121, at *2. The Court therefore 27 GRANTS Apple’s Motion to Seal (ECF No. 589). 28 / / / 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS Apple’s Ex Parte Motion for Leave 3 ||to File Motion for Summary Judgment of No Willfulness, DENIES Apple’s Motion for 4 ||Summary Judgment of No Willfulness, and GRANTS IN PART and DENIES IN PART 5 || Taction’s Motion for Leave to Supplement Its Record on Apportionment, and DENIES 6 || Taction Motion to Bifurcate. Additionally, the Court GRANTS the Parties’ Motions to 7 || Seal (ECF Nos. 579, 582, 589). The Clerk of Court SHALL FILE UNDER SEAL the 8 ||documents previous lodged under seal at ECF Nos. 529, 580, and 583. 9 IT IS SO ORDERED. 10 || Dated: September 3, 2026 —— | as) (2 D (re 2 Honorable Todd W. Robinson United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16