Case 1:13-cv-00919-JLH Document 424 Filed 01/26/23 Page 1 of 4 PageID #: 47634
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 13-919-JLH
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`JURY TRIAL DEMANDED
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`)))))))))
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`ARENDI S.A.R.L.,
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`GOOGLE LLC,
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`Plaintiff,
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`v.
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`Defendant.
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`LETTER TO THE HONORABLE JENNIFER L. HALL FROM
`DAVID E. MOORE, ESQUIRE
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`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`abrown@potteranderson.com
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`Attorneys for Defendant Google LLC
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`OF COUNSEL:
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`Robert W. Unikel
`Michelle Marek Figueiredo
`John Cotiguala
`Matt Lind
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Tel: (312) 449-6000
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`Robert R. Laurenzi
`Chad J. Peterman
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 318-6000
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`Ariell Bratton
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Tel: (858) 458-3000
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`Dated: January 19, 2023
`10555100 / 12599.00040
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`Case 1:13-cv-00919-JLH Document 424 Filed 01/26/23 Page 2 of 4 PageID #: 47635
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`Dear Judge Hall:
`Google asks the Court to strike those portions of Arendi damages expert Roy Weinstein’s
`supplemental expert reports (Exs. 1, 2) that calculate damages based on Google’s Accused Apps
`on Samsung devices.
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`Following supplemental damages expert discovery that only recently closed on October
`28, 2022, and following a subsequent attempt to resolve this case via mediation by December 21,
`2022 (see D.I. 412), it became clear that Mr. Weinstein intends to erroneously pursue infringement
`damages for Accused Apps on Samsung devices. Google thus promptly presents this issue to the
`Court well before trial, as the interpretation of
` “is a legal
`matter for the court.” 805 Third Ave. Co. v. M.W. Realty Assoc., 448 N.E.2d 445, 451 (N.Y. 1983).
`Background
`Arendi alleges that Google infringed Claims 1, 8, 23, and 30 (the “Asserted Claims”) of U.S. Patent
`No. 7,917,843 (the “’843 patent”) via software applications (the “Accused Apps”)1 available on
`Android mobile devices, including those sold, marketed, and used by Samsung and its customers.
`The Accused Apps allegedly infringe the Asserted Claims via two particular functionalities (the
`“Accused Functionalities”) that are provided by or rely on Google’s Android operating system
`(“Android OS”): “Smart Text Selection with Text Classifier,” “Content Detectors,” and “Quick
`Actions.”
`Arendi previously brought
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` its action asserting the ’843 patent against Samsung.
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`In his supplemental damages reports,
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` in Accused App-based damages for Accused
`He thus calculates
`Apps on all Android devices, including Samsung devices. (Ex. 1, Weinstein Suppl. Report ¶ 15;
`Ex. 2, Weinstein Suppl. Reply Report ¶ 13.) Mr. Weinstein alternatively calculates
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`in Accused App-based damages excluding Accused Apps on Samsung devices (that is, excluding
`Samsung’s 42.1% Android OS device market share). (Ex. 1, Weinstein Suppl. Report ¶ 15 n.22;
`id. at Suppl. Ex. 5C; Ex. 2, Weinstein Suppl. Reply Report ¶ 13 n.19.) The issue of whether Mr.
`Weinstein can include in his calculations Accused Apps installed or running on
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`thus affects alleged damages by over
`. Mr. Weinstein offers no substantive
`rationale for including Accused Apps on Samsung devices in his supplemental damages
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`1 The Accused Apps include Calendar, Chrome, Contacts, Docs, Gmail, Hangouts, Inbox, Keep,
`Messages, News, Sheets, Slides, and Tasks.
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`Case 1:13-cv-00919-JLH Document 424 Filed 01/26/23 Page 3 of 4 PageID #: 47636
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`The Honorable Jennifer L. Hall
`January 19, 2023, Page 2
`calculations—he included them simply because “[t]he Court has not determined that accused
`Google apps installed on devices sold by . . . Samsung . . . are licensed.” (Ex. 2, Weinstein Suppl.
`Reply Report ¶ 10.) He explained at deposition that he provided his alternative damages
`calculations “in the event that . . . the court decides that those apps are licensed.” (Ex. 4, Weinstein
`Suppl. Dep. Tr. at 337:24–338:9.) He confirmed he made no independent determination or
`conclusion about whether Accused Apps downloaded to Samsung devices are, in fact, licensed
`. (Id. at 337:24–339:14.)
`The Court should strike the portions of Mr. Weinstein’s reports that include damages for
`Accused Apps on Samsung devices
`The
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`. “Construction of an unambiguous contract is a matter of law, and the
`intention of the parties may be gathered from the four corners of the instrument and should be
`enforced according to its terms.” Beal Sav. Bank v. Sommer, 865 N.E.2d 1210, 1213–14 (N.Y.
`2007). As Mr. Weinstein himself indicated, the Court must resolve this dispute.
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`r. Weinstein himself has naturally referred to the Accused Apps, Android
`OS, and Accused Functionalities and software in this case as “services,” “applications,” “the
`Android software platform,” and “mobile phone applications and software.” (Ex. 5, Weinstein
`Opening Report ¶ 15 (emphasis added).)
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`Unquestionably
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`This alone precludes a finding of
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`infringement as to the Accused Apps on Samsung devices,
` In particular, the Asserted Claims require “displaying [a]
`document” and an “input device” for a user command. (D.I. 97-1, ’843 patent at 10:41–42, 10:50–
`52, 10:61–62, 12:45–46, 12:54–56, 12:65–66.) A document can only be “displayed” via some sort
`of hardware, “such as a conventional display device or a touch screen monitor”; and an input
`device requires hardware to permit the user input, “such as a touch screen button, keyboard button,
`icon, menu choice, voice command device, etc.” (Id. at 3:46–48, 9:3–8.) As Arendi itself alleges,
`the hardware required for these claim elements are the Samsung/Android devices and their
`components – for example, their touchscreens. (Ex. 6, Arendi’s Infringement Contentions Ex. E at
`200 (alleging infringement based on “input mechanisms” such as “touchscreens, keyboards,
`styluses, [and] wired or wireless accessories”).) Arendi’s infringement allegations against
`Google’s Accused Apps on Samsung devices thus rely on indisputably licensed Samsung device
`hardware.
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`Case 1:13-cv-00919-JLH Document 424 Filed 01/26/23 Page 4 of 4 PageID #: 47637
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`The Honorable Jennifer L. Hall
`January 19, 2023, Page 3
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`Google supplies
`the Accused Apps, the Android OS, and the Accused Functionalities to Samsung Android devices,
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`Mr. Weinstein’s supplemental reports provide no basis for his opinions including damages for
`Accused Apps on Samsung devices – nor can they,
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` Mr. Weinstein instead offers alternative calculations and expressly
`awaits and invites the Court’s decision on which calculations he may present at trial. The Court
`should strike Mr. Weinstein’s baseless damages calculations for Accused Apps on Samsung
`devices, so that he may rely only on his alternative calculations that omit Accused Apps on
`Samsung devices. See Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002)
`(“It is an abuse of discretion to admit expert testimony which is based on assumptions lacking any
`factual foundation in the record.”); Fed. R. Civ. P. 26(a)(2)(B); Fed. R. Evid. 702(b) (an expert’s
`opinion testimony must be “based on sufficient facts or data”).
`Google’s motion is timely
`In its Answer to Arendi’s Amended Complaint, Google asserted defenses of “Non-Infringement”
`and of “patent exhaustion and/or implied license” based on any “licensed rights . . . granted to
`third-parties.” (D.I. 99, Answer to Am. Compl. ¶¶ 60, 69.)
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` (Id. ¶ 69.) After supplemental expert discovery and mediation (which only concluded on
`December 21, 2022), Google expected that Mr. Weinstein and Arendi would withdraw any
`damages calculations for Accused Apps on Samsung devices in light of
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` They refuse to do so, so Google promptly presents this issue to the Court so it may
`strike Mr. Weinstein’s erroneous calculations and settle the issue well before trial. This is an issue
`that must be decided by the Court; it would be error to submit this issue to the jury for resolution.
`See 805 Third Ave. Co., 448 N.E.2d at 451 (“Interpretation of the [unambiguous] contract is a legal
`matter for the court[.]”); Wadsworth v. Allcott & Smith, 6 N.Y. 64, 64 (N.Y. 1851) (“No question
`as to the meaning of such [unambiguous] contract, can properly be submitted to a jury.”).
`Respectfully,
`/s/ David E. Moore
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`David E. Moore
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`DEM:nmt/10555100/12599.00040
`Enclosures
`cc:
`Clerk of the Court (via hand delivery)
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`Counsel of Record (via electronic mail)
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