Case 3:20-cv-06754-WHA Document 842 Filed 07/14/23 Page 1 of 19
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`CLEMENT SETH ROBERTS (SBN 209203)
`croberts@orrick.com
`BAS DE BLANK (SBN 191487)
`basdeblank@orrick.com
`ALYSSA CARIDIS (SBN 260103)
`acaridis@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`Telephone:
`+1 415 773 5700
`Facsimile:
`+1 415 773 5759
`
`SEAN M. SULLIVAN (pro hac vice)
`sullivan@ls3ip.com
`J. DAN SMITH (pro hac vice)
`smith@ ls3ip.com
`MICHAEL P. BOYEA (pro hac vice)
`boyea@ ls3ip.com
`COLE B. RICHTER (pro hac vice)
`richter@ls3ip.com
`LEE SULLIVAN SHEA & SMITH LLP
`656 W Randolph St., Floor 5W
`Chicago, IL 60661
`Telephone:
`+1 312 754 0002
`Facsimile:
`+1 312 754 0003
`Attorneys for Sonos, Inc.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA,
`SAN FRANCISCO DIVISION
`
`SONOS, INC.,
`Plaintiff and Counter-defendant,
`v.
`GOOGLE LLC,
`Defendant and Counter-claimant.
`
`
`
`
`
`
`
`Case No. 3:20-cv-06754-WHA
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`Consolidated with
`Case No. 3:21-cv-07559-WHA
`SONOS, INC.’S REPLY IN SUPPORT
`OF RULE 50 AND 59 MOTION
`Judge: Hon. William Alsup
`Courtroom: 12, 19th Floor
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`SONOS, INC.’S REPLY ISO
`RULE 50 AND 59 MOTION
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`Case 3:20-cv-06754-WHA Document 842 Filed 07/14/23 Page 2 of 19
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION .................................................................................................................. 1
`I.
`II. A REASONABLE JURY WAS REQUIRED TO FIND THAT GOOGLE DIRECTLY
`INFRINGES THE ’966 PATENT .......................................................................................... 1
`A. The jury determined that Google’s “no standalone mode” redesign infringes. .......... 1
`B. A reasonable jury could only have found that Google’s accused products store the
`zone scene ................................................................................................................... 2
`C. A correctly instructed jury would be required to find that the ’966 patent was
`directly infringed. ........................................................................................................ 5
`III. A REASONABLE JURY WAS REQUIRED TO FIND THE ’966 PATENT INDIRECTLY
`AND WILLFULLY INFRINGED .......................................................................................... 9
`A. A reasonable jury was required to find the ’966 patent indirectly infringed .............. 9
`B. A reasonable jury was required to find that Google’s infringement of the ’966 patent
`was willful. ................................................................................................................ 14
`IF THE COURT GRANTS SONOS A NEW TRIAL ON INFRINGEMENT OF THE ’966
`PATENT, THE COURT SHOULD CORRECT CERTAIN RULINGS. ............................. 15
`V. CONCLUSION ..................................................................................................................... 15
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`IV.
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`Case 3:20-cv-06754-WHA Document 842 Filed 07/14/23 Page 3 of 19
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`ACCO Brands, Inc. v. ABA Locks Mfrs. Co.,
`501 F.3d 1307 (Fed. Cir. 2007) ..................................................................................... 9, 10, 13
`
`Chicago Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC,
`677 F.3d 1361 (Fed. Cir. 2012) ................................................................................................. 6
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`Lucent Techs., Inc. v. Gateway, Inc.,
`580 F.3d 1301 (Fed. Cir. 2009) ............................................................................................... 13
`
`Nazomi Communications, Inc. v. Nokia Corp.,
`739 F.3d 1339 (Fed. Cir. 2014) ................................................................................................. 8
`
`Pavo Solutions LLC v. Kingston Tech. Co., Inc.,
`No. 8:14-cv-01352-JLS-KES, 2020 WL 9158697, (C.D. Cal. Aug. 7, 2020),
`aff’d, 35 F.4th 1367 (Fed. Cir. 2022) ........................................................................................ 4
`
`Retractable Techs., Inc. v. Becton, Dickinson & Co.,
`653 F.3d 1296 (Fed. Cir. 2011) ................................................................................................. 7
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`Ricoh Co. v. Quanta Computer Inc.,
`550 F.3d 1325 (Fed. Cir. 2008) ............................................................................................... 12
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`Silicon Graphics, Inc. v. ATI Techs., Inc.,
`607 F.3d 784 (Fed. Cir. 2010) ................................................................................................... 6
`
`Toshiba Corp. v. Imation Corp.,
`681 F.3d 1358 (Fed. Cir. 2012) ............................................................................................. 13
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`Typhoon Touch Techs., Inc. v. Dell, Inc.,
`F.3d 1376 (Fed. Cir. 2011) ........................................................................................................ 8
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`Other Authorities
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`Fed. R. Civ. P. 50 .................................................................................................................. 1, 4, 14
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`Fed. R. Civ. P. 50(a) .................................................................................................................. 1, 10
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`Fed. R. Civ. P. 59 ...................................................................................................................... 1, 14
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`Case 3:20-cv-06754-WHA Document 842 Filed 07/14/23 Page 4 of 19
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`I.
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`INTRODUCTION
`Sonos is entitled to judgment as a matter of law that Google infringes the ’966 patent.
`The Court should enter judgment in Sonos’s favor, or, in the alternative, grant Sonos’s motion for
`a new trial on the ’966 patent pursuant to Rule 59.
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`II.
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`A REASONABLE JURY WAS REQUIRED TO FIND THAT GOOGLE
`DIRECTLY INFRINGES THE ’966 PATENT
`As Sonos explained, Mot. 1-2, Sonos proved and Google does not dispute infringement of
`the vast majority of the limitations of the asserted claims of the ’966 patent.1 Google raised three
`non-infringement arguments for the ’966 patent: (a) the redesigned accused products do not
`remain in standalone mode while the speaker groups are set up and invoked, (b) the speaker
`groups are not stored on the accused media players, and (c) Sonos failed to prove that any
`customer had networked three accused media players with a computing device provisioned with
`the Google Home App. Those arguments fail, Mot. 1-16, and a reasonable and properly
`instructed jury was required to find that Google directly infringes the ’966 patent.
`
`A.
`The jury determined that Google’s “no standalone mode” redesign infringes.
`Google argues that its redesigned products do not continue to operate in “standalone
`mode” after being added to a speaker group. Mot. 2-4. That argument fails for two reasons.
`First, claim 1 of the ’966 patent (unlike claim 1 of the ’885 patent) does not require
`“continuous” operation in standalone mode. Mot. 1-2. Google argues that “at each one of the
`steps” of claim limitations 1.5, 1.6, 1.7, 1.8, and 1.9, the claim requires that the steps “be done
`while operating in standalone mode.” Opp. 12 (quoting Almeroth testimony); see also id. at 11.
`We agree. Our argument is that “claim 1 of the ’966 patent does not require ‘continuous’
`operation in standalone mode,” Mot. 2, that is, the claim does not require that the player remain in
`
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`1 Google argues that Sonos’s motion fails to analyze “each and every element of the ’966 patent
`asserted claims” but does not actually dispute that the other elements are met. Opp. 2. Google
`suggests that Sonos improperly incorporated by reference its Rule 50(a) motion (discussing these
`other claim elements), Opp. 2 n.1, before itself “fully incorporat[ing]” “by reference” the
`arguments that it made in its own Rule 50 motion, Opp. 11. Google’s selective objection ignores
`that Sonos’s motion is a renewed motion under Rule 50.
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`standalone mode in between each recited step.2 And Google’s only answer is to resort to its
`quixotic prosecution history argument, which the Court—correctly—did not adopt during trial.
`See Opp. 13. Compare also, e.g., Dkt. 732 at 4 (Google arguing that “the prosecution history of
`the ’966 and ’885 patent … indicates that a zone player must be continuously outputting media as
`part of the Standalone Limitation”), with Dkt. 762 (final charge not adopting this claim
`construction). As Sonos has previously explained, the Examiner’s statements that Google relies
`on were not about standalone mode at all, and the examiner allowed the claims following an
`amendment describing grouped mode. See, e.g., Dkt. 839 at 17-18; Dkt. 733.
`Second, even if claim 1 of the ’966 patent did require continuous operation in standalone
`mode, the jury’s verdict that Google infringes claim 1 of the ’885 patent necessarily means that
`Google’s products meet the “standalone mode” requirements of claim 1 of the ’966 patent. Mot.
`2-3. Google argues that the claims are not “identical with respect to the standalone mode
`requirements.” Opp. 13-14. But Google does not dispute that (1) its non-infringement defense
`regarding standalone mode was identical for both patents, (2) its standalone mode argument was
`weaker as to the claims of the ’966 patent than with respect to the ’885 patent, and (3) its redesign
`effected no change to the software accused of infringing the ’966 patent. Mot. 4. Because
`Google’s “redesign” infringes the ’885 patent, there is no basis on which a reasonable jury could
`conclude that Google does not infringe the ’966 patent as to the “standalone mode” limitation.
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`B.
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`A reasonable jury could only have found that Google’s accused products store
`the zone scene.
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`Google offered only one non-infringement theory unique to the ’966 patent: the accused
`products (in both prior and new versions) do not “cause storage” of zone scenes. See Opp. at 1
`(identifying causing storage as the only difference in the claims). Google’s arguments regarding
`“causing storage” are both inconsistent with the claim language and refuted by Google’s own
`
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`2 Google attempts to shoehorn in its rejected “idle mode” theory, arguing that the speaker moves
`from standalone mode to idle mode before saving the group. Opp. 12. The jury necessarily
`found through its infringement verdict on the ’885 patent that the StopCurrentApp function does
`not cause the speaker to leave grouped mode, so this argument fails.
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`witnesses and technical documents. Mot. 4-7. No reasonable jury could find that the Google
`Home App does not cause storage of the zone scenes.
`Google first argues that “[u]ndisputed testimony established that Google’s speakers are
`grouped dynamically.” Opp. 2 (emphasis added). But Google’s own employees confirmed that
`the accused grouping technology is static rather than dynamic. Mr. MacKay testified, for
`example, that “a ‘static group’ is what is being referred to -- in this document, ‘Create and
`manage speaker groups,’” in contrast to a dynamic group. Dkt. 755-2 at ECF p. 25-26, see also,
`e.g., id. at ECF p. 26 (the phrase “static” refers to speaker groups “as sort of the opposite of -- of
`dynamic, or like as an alternative to dynamic to differentiate the two kinds of groups”); id. at
`ECF p. 75 (Chan: “[t]he Google Home app is required to create a static speaker group”). And
`Google’s related argument that its “accused products operate dynamically, without persistent
`storage of the grouping,” Opp. 3, is contradicted by Mr. MacKay’s admission that Google’s
`accused speaker groups are “saved persistently,” including the “the name and ID of the group.”
`Dkt. 754-2 (MacKay 5/10/22) at 11; Dkt. 754-3 at 117:20-24; Tr. at 1277:5-9.
`Even more fundamentally, as Sonos explained, zone scenes must be saved persistently
`because—as Google’s witnesses admitted—the zone scenes can be invoked hours, days, or weeks
`later. Mot. 6. Google does not dispute this, but argues that under this logic, Sonos’s 2005
`System would have invalidated the claims. Opp. 3-4. But Google’s argument ignores the
`differences between creating and immediately invoking versus saving and later invoking a group.
`As Mr. Lambourne testified, the zone groups in Sonos’s 2005 system “would remain in existence
`until the user decided to do something else,” and so, “if you went away for a few days with the
`two rooms grouped together and came back, they would still be grouped together,” but as soon as
`you changed the grouping, the group would be lost and had to be recreated to use it again. Tr.
`418:9-419:6 (emphases added). That is a basic difference between static groups (e.g., zone
`scenes) and dynamic groups (e.g., party mode), and there is no substantive dispute that Google’s
`speaker groups are static groups.
`Sonos also explained that because the Court has already found that Google’s speaker
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`groups are saved in the context of the ’885 patent, that means that Google’s speaker groups are
`stored for purposes of the ’966 patent. Mot. 6. Google argues that Sonos failed to “raise[] this
`point to the jury, as required under Rule 50.” Opp. 4.3 This is not only untrue—Sonos repeatedly
`argued that Google’s speaker groups are saved, e.g., Tr. 1278:11-14—but immaterial for two
`reasons. First, the jury was instructed on both the claim construction of “zone scenes” and the
`Court’s finding that Google infringes claim 1 of the ’885 patent, so it obviously knew that zone
`scenes are previously stored. Second, with respect to infringement of the ’885 patent, Google
`only disputed whether its redesigned products meet the standalone mode requirements; there was
`no dispute Google’s products use zone scenes. Similarly, Google’s complaint that “the ’885
`claim language does not mention saving or storing” is beside the point where Google admits that
`the concept of saving in the ’885 patent comes from “the Court’s construction of ‘zone scene,’”
`Opp. 4 (emphasis added), which Google does not challenge. Regardless, Google’s argument that
`it “introduced substantial evidence at trial showing that the accused speaker groups … were not
`stored for later invocation,” Opp. 5, is belied by the fact that the speaker groups are retrievable
`for later invocation, as discussed above (citing Mot. 6).
`Sonos further established that Google stores “the name and ID of the group.” Dkt. 754-2
`(MacKay 5/10/22) at 11. Google argues that storing the identifier and name of the speaker group
`is not enough to meet either the storage limitation or the construction “previously-saved grouping
`of zone players,” but offers no support beyond its own argument that the jury “found it
`insufficient.” Opp. 5. Google identified nothing in the record suggesting that a reasonable jury
`could accept Google’s argument that “a mere group identifier and name” do not “meet the
`claimed ‘previously-saved grouping of zone players’ construction,” Opp. 5. Google instead
`contends that “there is no ‘storage’ of zone scenes”—if you understand “storage” to mean
`
`3 This is hardly analogous to Pavo Solutions LLC v. Kingston Tech. Co., Inc., where the court
`granted an “unopposed” 50(b) motion, finding that the defendant stated that “it was ‘dropping’ its
`invalidity arguments,” presented “no evidence or argument bearing on invalidity” at all, and
`“agreed to revise the jury instructions to remove all reference to invalidity.” No. 8:14-cv-01352-
`JLS-KES, 2020 WL 9158697, at *3 (C.D. Cal. Aug. 7, 2020), aff’d, 35 F.4th 1367 (Fed. Cir.
`2022).
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`persistently stored, stored in a single location, or storing a list of the members of the zone scene.
`Opp. 2-7. None of these arguments are persuasive because none of Google’s glosses on “storage”
`are reflected in the claims, as Dr. Schonfeld admitted. Mot. 5.
`Google’s main argument is that its “accused devices use an architecture where ‘each
`device doesn’t . . . have stored information about what other members of the group exist so it
`doesn’t know which other devices are members of that group.’” Opp. 2-3. But Google identifies
`no claim limitation of the ’966 patent requiring that each networked speaker “know which other
`[speakers] are members of that group”—because there is none.
`To support its argument that storage must mean a list of group members, Google contends
`that Sonos cannot “cite a single embodiment of a zone scene in the ’966 patent that does not
`include group membership information.” Opp. 6-7. This is irrelevant because Google’s citation
`is to one “preferred embodiment[],” disclosed “by way of example[] only,” and ignores the legal
`rule that claims of a patent are not limited to exemplary embodiments. TX0001 at 4:10, 11:23;
`Mot. 7 (citing Dow Chem. Co. v. United States, 226 F.3d 1334, 1342 (Fed. Cir. 2000)). But in the
`end, it is undisputed that Google does store group membership information, because the group
`leader “stores information about the followers that are currently connected to it.” Mot. 7 (quoting
`Dkt. 754-2 (MacKay 5/10/22) at 8; Dkt. 766-2 at 95:14-20).4
`A reasonable jury could only find that the Home App causes storage of the zone scenes.
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`C.
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`A correctly instructed jury would be required to find that the ’966 patent was
`directly infringed.
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`That leaves only one basis on which the jury could have found Google did not infringe the
`’966 patent: the Court’s ruling that “Google cannot infringe the ’966 patent with respect to
`computing devices with the Google Home app installed that are not yet networked with at least
`three zone players that may be added to overlapping zone scenes using the Google Home app.”
`
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`4 Google argues that Mr. MacKay “clarified” at trial that this information was only stored
`temporarily, Opp. 6, but Mr. MacKay admitted on cross examination that this was new testimony
`at trial that he had not testified to at his deposition, Tr. 1277:1-4, so that “clarifi[cation]” was
`entitled to little weight.
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`Dkt. 762 at 16-17 (Instruction No. 31). As Sonos explained, that construction is wrong as a
`matter of law. Mot. 8-16. And had the jury been correctly instructed, a reasonable jury would
`have found that Google directly infringes the ’966 patent. Mot. 16. Accordingly, the Court
`should grant Sonos’s motion for judgment as a matter of law that Google directly infringes the
`’966 patent or grant Sonos’s motion for a new trial on infringement of the ’966 patent.
`Google defends the Court’s claim construction by redlining the claim language as follows:
`
`Google removes key language including “program instructions … that, when executed … cause
`the computing device to perform functions.” TX0001 at 11:37-41 (Claim 1) (emphasis added).
`Google’s re-writing of the claim’s express terms makes little sense on its face, and would define,
`for example, a wallet as something that must have cash in it, rather than something that is
`designed to be able to hold cash. Google’s rewriting would also erroneously convert these device
`claims into method claims or system claims, which they plainly are not. See, e.g., Chicago Bd.
`Options Exch., Inc. v. Int’l Sec. Exch., LLC, 677 F.3d 1361, 1373 (Fed. Cir. 2012) (district court
`erred in construing device claim as method claim). As Sonos has explained, proving direct
`infringement of “an apparatus claim directed to a computer that is claimed in functional terms”
`requires showing “the product is designed in such a way as to enable a user of that [product] to
`utilize the function ... without having to modify [the product].” Silicon Graphics, Inc. v. ATI
`Techs., Inc., 607 F.3d 784, 794 (Fed. Cir. 2010). Under the proper construction, Sonos met that
`burden here.
`Google’s principal defense of the Court’s claim construction is just to say that this is
`something the “Court has already considered” and decided. Opp. 7-8. And Google’s only
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`affirmative legal argument to defend the Court’s construction is to point to cases providing that
`claim language must be tethered to the specification. Id. But none of those cases support
`rewriting claims. For example, Google cites Retractable Techs., Inc. v. Becton, Dickinson & Co.
`for the proposition that “in claim construction courts ‘strive to capture the scope of the actual
`invention, rather than . . . allow the claim language to become divorced from what the
`specification conveys is the invention.’” Id. (quoting 653 F.3d 1296, 1305 (Fed. Cir. 2011)).
`Sonos’s construction of the asserted claims of the ’966 patent does capture the invention
`described in the specification, because it requires a controller with program instructions that
`closely track the static speaker group functionality described in the specification. See, e.g.,
`TX00001 Fig. 6. Thus, the claims do not cover “any mobile device,” Opp. 8, but only a mobile
`device with specific functionality.
`Google does not seriously dispute the applicability of any of Sonos’s cited cases on
`capability, configuration, or functional claim language—including cases in which Google made
`and lost these same arguments. Mot 10-13. Google’s argument instead is that those cases did not
`“analyze[] the same claim language at issue here.” Opp. 8. Of course the cases did not evaluate
`the exact claim language at issue here. Sonos’s legal authority does not lose all persuasive and
`binding force merely because it involves a different patent; Google’s failure to substantively rebut
`these cases is an admission that it cannot rebut them. Similarly, Google argues against its own
`strawman in contending that “not every ‘computing device’ is covered by the claims, only those
`that serve as a controller …” Opp. 8. But Sonos does not contend that “every” computing device
`or smartphone meets the claim’s limitations; Sonos only accuses computing devices that have
`specific program instructions stored on the device that give the device the capability to carry out
`certain functions, as the Google Home app does.
`Google also faults Sonos for purportedly failing to address the Court’s holding that
`(1) “[t]he claim language does not recite any functions to be performed …unrelated to those
`computing devices ‘serving as a controller’” and that (2) “a computing device is not capable of
`serving as a controller unless it is networked with at least three zone players that may be added to
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`overlapping zone scenes.” Opp. 8. Sonos does not dispute that the functions to be performed all
`involve serving as a controller, but as the claim language makes clear, the recited device need
`only be programmed to serve as a controller.
`Google points to the “causing storage of the [] zone scene[s]” function as an example of
`something the controller cannot do “without additional hardware and software (that of the
`speakers).” Opp. 8-9. But Google ignores the trial evidence that Sonos relies on. Dr. Almeroth
`showed that the Google Home App can cause storage of the zone scene without any modification
`to the software. Mot. 15 (citing TX441; Tr. at 770:3-791:20). That is the relevant test, as
`Google’s own caselaw, discussed below, confirms. At no point in Dr. Almeroth’s testing did he
`“modify” the software; all he did was invoke existing functionality as it was designed for
`customers to invoke (and as Google, in fact, advertised to customers how to invoke). For
`example, Dr. Almeroth did not change any programming within the Google Home App or add
`any additional software to cause the Home App to send the “join_group” message. Mot. 15-16
`(citing Tr. at 784:9-16; TX78 at SC-GOOG-SONOSNDCA-000146). As Sonos further
`explained, that functionality was already programmed into the Google Home App and was
`present on a computing device the instant the Google Home App was downloaded and installed
`onto that computing device. Id. Dr. Almeroth even pointed out to the jury the exact lines of
`source code containing that function, and Google never disputed that these were genuine software
`instructions that Google engineers added to the Google Home App.
`Google’s cases, including Nazomi Communications, Inc. v. Nokia Corp., confirm that is
`sufficient to find infringement, because “an apparatus claim directed to a computer that is claimed
`in functional terms is nonetheless infringed so long as the product is designed in such a way as to
`enable the user of that [product] to utilize the function without having to modify the product.”
`739 F.3d 1339, 1345 (Fed. Cir. 2014) (citation omitted). And in Typhoon Touch Techs., Inc. v.
`Dell, Inc., the Federal Circuit similarly held that “the apparatus as provided must be ‘capable’ of
`performing the recited function, not that it might later be modified to perform that function.” 659
`F.3d 1376, 1380 (Fed. Cir. 2011).
`
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`8
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`SONOS, INC.’S REPLY ISO
`RULE 50 AND 59 MOTION
`3:20-CV-06754-WHA
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`Case 3:20-cv-06754-WHA Document 842 Filed 07/14/23 Page 12 of 19
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`In sum, Google’s non-infringement argument was based on the purported need to network
`the computing device with at least three zone players, which hinged entirely on the Court’s
`incorrect jury instructions. Mot. 16 (citing Tr. at 1872:20-1873:17). Absent that erroneous
`instruction, a reasonable jury would have no basis for finding that the installation of the Google
`Home App on a computing device does not infringe the ’966 patent. Google’s only other non-
`infringement arguments were either already rejected by the jury (“no standalone mode”) or could
`not be credited by a reasonable jury (causing storage). Because a properly instructed jury would
`be compelled to find that the ’966 patent was infringed, the Court should grant Sonos judgment as
`a matter of law that Google directly infringed the ’966 patent. At minimum, Sonos is entitled to a
`new trial with correct jury instructions.
`
`III. A REASONABLE JURY WAS REQUIRED TO FIND THE ’966 PATENT
`INDIRECTLY AND WILLFULLY INFRINGED
`A.
`A reasonable jury was required to find the ’966 patent indirectly infringed.
`Sonos established that Google both induced infringement of the ’966 patent and
`contributorily infringed by offering the Google Home App for installation on internet-connected
`computing devices.
`Direct infringement by third parties: The jury heard unrebutted evidence of nearly 100
`million downloads of the Google Home App, e.g., Tr. at 1203:17-20, combined with unrebutted
`evidence that a large plurality of households with smart speakers have three or more speakers.
`Mot. 17 (collecting cites). And under the Court’s construction, once a computing device installed
`with the Home App is networked with three or more speakers, that system “necessarily infringes
`the patent in suit” because the Home App has all required functionality. ACCO Brands, Inc. v.
`ABA Locks Mfrs. Co., 501 F.3d 1307, 1313 (Fed. Cir. 2007). That is overwhelming
`circumstantial evidence of direct infringement. Google appears to argue that Sonos had to
`provide direct evidence of infringement. But circumstantial evidence is sufficient to prove
`infringement. Mot. 17-18.
`Google quibbles that Mr. Malackowski’s testimony did not establish that all of these
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`SONOS, INC.’S REPLY ISO
`RULE 50 AND 59 MOTION
`3:20-CV-06754-WHA
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`Case 3:20-cv-06754-WHA Document 842 Filed 07/14/23 Page 13 of 19
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`households have “three speakers compatible with the Google Home app,” Opp. 10, but the only
`possible inference is that at least some of them do. For example, the jury heard unrebutted
`testimony from Ms. Kwasizur that Sonos determined that “if one customer buys one Sonos
`[speaker], we know from our data that on average they buy 2.9 or 3 more products” from Sonos,
`Tr. 1019:23-24, see also id. at 1019:25-1020:1, 1021:12-20, and nothing in the trial record
`suggests that that repeat purchaser dynamic is not analogous for purchasers of Google products.
`In light of this unrebutted evidence, and because a computing device installed with the Home App
`and networked to three or more speakers “necessarily infringes the patent in suit,” ACCO, 501
`F.3d at 1313, a reasonable jury could only find that there were acts of direct infringement—even
`under the Court’s incorrect claim construction ruling.5 And under the correct claim construction
`ruling, there is no question of direct infringement, as shown by evidence of the number of
`downloads of the Google Home App.
`Google further argues that Sonos had to prove a specific instance of a user or Google
`“creat[ing] multiple overlapping speaker groups.” Opp. 9. Google suggests that this was required
`“under the Court’s construction,” but the Court’s construction requires that a computing device be
`networked with zone players, not that a user create overlapping groups. Indeed, a large part of
`Google’s invalidity defense at trial and in its Rule 50(a) motion consisted of its argument that
`“the claims in this case -- all the claims -- do not require any type of user action in terms of
`creation, configuration, saving and recollection of any of the zone scenes.” Tr. 1944:20-23 (oral
`argument on Rule 50(a) motions).
`Both of Google’s arguments are also wrong insofar as they suggest that a capability claim
`requires direct proof that the recited capability was performed. Google emphasizes that “even in
`the context of claims ‘directed to capability,’ the Federal Circuit has made clear the patentee is
`
`5 Google suggests that the accused computing devices “have many non-infringing uses,” Opp. 14-
`15, but that does not help Google. The question is whether “the accused device can be used … in
`a noninfringing manner.” Id. (quoting ACCO, 501 F.3d at 1313). As Sonos has explained, even
`under the Court’s claim construction, in the context of a capability claim, there is infringement
`any time a computing device with the Google Home app is part of a network that includes three
`or more zone players.
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`10
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`SONOS, INC.’S REPLY ISO
`RULE 50 AND 59 MOTION
`3:20-CV-06754-WHA
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`Case 3:20-cv-06754-WHA Document 842 Filed 07