Case 1:13-cv-00919-JLH Document 494 Filed 04/27/23 Page 1 of 13 PageID #: 51344
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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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`)))))))))
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`GOOGLE’S MOTION FOR JUDGMENT AS A MATTER OF LAW ON THE ISSUE OF
`NO DIRECT INFRINGEMENT
`
`ARENDI S.A.R.L.,
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`
`
`
`
`GOOGLE LLC,
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`
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`Plaintiff,
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`
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`v.
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`
`
`Defendant.
`
`POTTER ANDERSON & CORROON LLP
`
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`abrown@potteranderson.com
`
`Attorneys for Defendant Google LLC
`
`OF COUNSEL:
`
`Robert W. Unikel
`John Cotiguala
`Matt Lind
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Tel: (312) 449-6000
`
`Robert R. Laurenzi
`Chad J. Peterman
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 318-6000
`
`Ginger D. Anders
`MUNGER, TOLLES & OLSON LLP
`601 Massachusetts Avenue NW, Suite 500E
`Washington, D.C. 20001
`Tel: (202) 220-1100
`
`Vincent Y. Ling
`MUNGER, TOLLES & OLSON LLP
`350 S. Grand Avenue, 50th Floor
`Los Angeles, CA 90071
`Tel: (213) 683-9100
`
`Dated: April 27, 2023
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`
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`

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`Case 1:13-cv-00919-JLH Document 494 Filed 04/27/23 Page 2 of 13 PageID #: 51345
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`I.
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`INTRODUCTION
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`Google moves for a judgment as a matter of law of no direct infringement of claims 23 and
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`30 (“Asserted Claims”) of U.S. Patent No. 7,917,843 (“’843 Patent”) under Federal Rule of Civil
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`Procedure 50(a). No reasonable juror could conclude that any Accused Product1 infringes any of
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`the Asserted Claims, because the accused applications (the “first computer programs”) do not have
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`instructions establishing processes for (A) configuring the claimed “input device” or (B) receiving
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`the claimed “user command” from the input device; instead, those instructions reside in the
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`Android operating system. Furthermore, Google does not, as a matter of law, infringe the
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`computer-readable-medium claims for Accused Apps on non-accused devices.
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`II. LEGAL STANDARD
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`A party infringes a patent if it “without authority makes, uses, offers to sell, or sells any
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`patented invention, within the United States or imports into the United States any patented
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`invention during the term of the patent.” 35 U.S.C. § 271. To prove infringement, Arendi must
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`show the presence in the accused products of each and every element of the properly construed
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`patent claims. See Inpro II Licensing, S.A.R.L. v. T-Mobile USA, Inc., 450 F.3d 1350, 1358 (Fed.
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`Cir. 2006). Because the Asserted Claims are computer-readable-medium claims, Arendi must
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`prove that each Accused Product is “‘capable of operating’ in the described mode.” Finjan v.
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`Secure Computing Corp., 626 F.3d 1197, 1203–04 (Fed. Cir. 2010) (citation omitted).
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`To “use” a system for purposes of infringement, “a party must put the invention into
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`service, i.e., control the system as a whole and obtain benefit from it.” Centillion Data Sys., LLC
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`v. Qwest Commc’ns Int’l, Inc., 631 F.3d 1279, 1284 (Fed. Cir. 2011). To “put the system into
`
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`1 The “Accused Products” are the instrumentalities accused of infringement, including (1) the
`“Accused Apps,” which are Google Calendar, Chrome, Contacts, Docs, Gmail, Hangouts, Inbox,
`Keep, Messages, Sheets, Slides, and Tasks; and (2) the “Accused Devices,” which are Pixel 2,
`Pixel 2 XL, Pixel 3, Pixel 3 XL, and Pixel C.
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`

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`Case 1:13-cv-00919-JLH Document 494 Filed 04/27/23 Page 3 of 13 PageID #: 51346
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`service,” the accused infringer “must be using all portions of the claimed invention.” Id. Where a
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`claim requires both software and hardware components, a party must “put into service” the
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`hardware and software in order to infringe. Id. at 1286 (“Supplying the software for the customer
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`to use is not the same as using the system.”). Similarly, to “make” an infringing system under §
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`271, a party must combine all of the claim elements. Id. at 1288. To “sell” or “offer for sale” an
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`infringing system, the accused infringer must sell (or offer for sale) the “complete invention.”
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`Synchronoss Techs., Inc. v. Dropbox, Inc., 987 F.3d 1358, 1368 (Fed. Cir. 2021).
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`III. ARGUMENT
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`Arendi failed to offer substantial evidence at trial of infringement on multiple elements of
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`the Asserted Claims by any Accused Product.
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`A.
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`“First computer program”
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`To infringe the Asserted Claims of the ’843 Patent, the “first computer program”—
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`Google’s Accused Apps—must both “set up” an “input device” and receive a “user command”
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`from the input device, and as a consequence “caus[e] a search for the search term in the information
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`source.” See ’843 patent at 12:54–55, 12:65–67; D.I. 144 at 2 (construing “providing an input
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`device configured by the first computer program”). The Court has construed “computer program”
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`to mean “a self-contained set of instructions, as opposed to a routine or library, intended to be
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`executed on a computer so as to perform some task.” (D.I. 144.) At trial, Mr. Atle Hedloy
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`confirmed that it was important for the invention that the relevant functionality be carried out by
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`the “first computer program” rather than some other program. See, e.g., 4/24/23 Trial Tr. (Hedloy)
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`at 176:11–12 (deposition testimony that the claims are “focused on the invention where the first
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`computer program is configuring” the input device). He also confirmed that, during prosecution
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`of the ’843 patent, Arendi pointed to prior art CyberDesk and Apple Data Detectors publications
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`as disclosing functionality for setting up an input device and receiving a user command from that
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`2
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`

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`Case 1:13-cv-00919-JLH Document 494 Filed 04/27/23 Page 4 of 13 PageID #: 51347
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`input device, but separate from the program related to the document. See, e.g., 4/24/23 Trial Tr.
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`(Hedloy) at 214:21–24 (agreeing that “it was an important distinction . . . that CyberDesk was
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`separate from the document editing program”), 227:6–10 (agreeing “that ADD is a part of the
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`operating system and analyzes the selected textual information and configures any input device,”
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`which Arendi used as a basis for distinguishing Apple Data Detectors in the prosecution history);
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`see also PX0925 at 111, 115 (Arendi’s Accelerated Examination Support Document distinguishing
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`publications from patent application related to the ’843 Patent). Along similar lines, both Mr.
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`Hedloy and Dr. Smedley confirmed at trial that the Asserted Claims require the input device to be
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`configured, and the user command to be received, by the first computer program, not the operating
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`system or receiving the user command. E.g., 4/24/23 Trial Tr. (Hedloy) at 179:13–17; 181:7–18
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`(agreeing that there is a “particular advantage to having the configuring of the input device be done
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`by the first computer program as opposed to having the input device configured by the operating
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`system,” that he “deliberately called out . . . that the input device must be configured by the first
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`computer program,” that though “it’s possible to construct a system where the operating system
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`receives a user command,” he “deliberately specified that the input device must be configured by
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`the first computer program and must receive the command from the input device”); 4/24/23 Trial
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`Tr. (Smedley) at 406:13–17 (stating that the element is met if “when the user command goes to
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`the input device it goes to the first computer program . . . connection there”).
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`Arendi’s infringement theory, as explained by Dr. Smedley, is that “the self-contained set
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`of instructions” is each Accused App. 4/25/23 Trial Tr. (Smedley) at 335:23–25 (“So the self-
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`contained set of instructions is each of these apps and the instructions that it includes.”). But no
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`reasonable jury could find that Google’s Accused Apps—each the “first computer program,” or
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`“self-contained set of instructions”—sets up an input device or receives a user command from the
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`3
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`

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`input device, and in consequence causes a search, because the evidence consistently shows that
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`the relevant STS instructions are in the Android operating system (or “Android Framework”) code
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`rather than in any Accused App code. Indeed, there can be no reasonable dispute that the code
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`instructions for Smart Text Selection that set up the accused “input device” and receive the accused
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`“user command” are contained within the Android Framework code—not within the code for the
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`Accused Apps. Arendi accepts this and presented the same during its case-in-chief. It presented no
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`evidence that the “self-contained set of instructions” for each Accused App—i.e., the code
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`contained within the app—itself carries out these claim limitations. Instead, the instructions within
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`the Accused Apps merely “display[] the document,” which satisfies only one limitation of the
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`Asserted Claims. E.g., PX0001 (’843 Patent) at 12:45–46, PX0713 (sample video). The critical
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`STS functionality for other elements, by contrast, is contained in the Android framework, as Dr.
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`Smedley and others admitted. E.g., 4/25/23 Trial Tr. (Smedley) at 293:23–294:4; 4/26/23 Trial Tr.
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`(Smedley) at 543:6–7, 546:8–12, 554:13–15; id. (Toki) at 718:21–25, 679:25–680:5 (stating that
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`the “Intents handling instructions” are “in the Framework”).
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`This lack of evidence of STS functionality within the bounds of the Accused Apps means
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`that the Accused Apps do not infringe two elements of the Asserted Claims.
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`1.
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`The Accused Apps do not “set up” the alleged device.
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`First, there is no evidence that the Accused Apps “set up” the alleged input device—the
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`STS menu bar. E.g., 4/25/23 Trial Tr. (Smedley) at 381:8–10, 382:3–6, 385:3–6, 387:7–9
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`(identifying the “input device” as “where you tap the button or menu item,” “that e-mail button,”
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`“that button that said, ‘map,’” “that menu button that says track,” and “the menu button ‘Call,’”
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`though “it’s [i.e., the whole menu bar is] all part of the input device”). Arendi and its infringement
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`expert, Dr. Smedley, pointed to no factual evidence that any of the Accused Apps contain the
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`instructions to set up (or “configure”) the input device (the Smart Text Selection menu bar), or
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`4
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`Case 1:13-cv-00919-JLH Document 494 Filed 04/27/23 Page 6 of 13 PageID #: 51349
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`receive the user command from that input device. Instead, the record is clear that the instructions
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`for the accused STS functionality is contained within Android Framework code, not in the Accused
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`Apps. See, e.g., 4/26/23 Trial Tr. (Toki) at 720:1–8 (identifying that “the instructions that set up
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`that menu bar that you see” are in the “Android framework” in the operating system); id. at 723:4–
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`8 (confirming that none “of the applications [in DTX-1068] . . . contain the code for Smart Text
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`Selection”); id. at 729:12–13 (“TextView is really part of the framework”); id. at 732:13–16
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`(stating that “the code that implements that Smart Selection Library that [he] mentioned in the
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`context of this Smart Text Selection feature” is “in the Android framework”); id. at 736:25–737:3
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`(stating that smart selection features “are implemented in the Android framework”); see also DTX-
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`1068; PX0123, PX0125 (Android Framework code). Mr. Toki further confirmed at trial that the
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`TextView component related to Smart Text Selection does not “run as part of the app’s process”
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`but instead “there will be multiple processes running.” 4/26/23 Trial Tr. (Toki) at 760:7–15.
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`There is no dispute as to those facts. Dr. Smedley himself confirmed that the instructions
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`that set up the input device are in the Android Framework and not in the Accused Apps. For
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`example, the instructions that he pointed to that set up STS as to Chrome are in the Android
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`Framework code. 4/25/23 Trial Tr. (Smedley) at 395:18–24 (identifying for Chrome “the public .
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`. . code that sets up that input device”); PDX-3-104; 4/27/23 Trial Tr. (Choc) at 787:18–788:17
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`(confirming that code is “from the Android framework”). So too for the all Accused Apps: Dr.
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`Smedley testified that the “set label, set icon, set component, [and] set intent” methods are “really
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`creating that button” (i.e., the input device), and unequivocally agreeing that “this code, this is in
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`the Android framework, not the app-specific code.” 4/25/23 Trial Tr. (Smedley) at 397:5–7. See,
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`e.g., PX0125 (containing Android Framework code). As Dr. Smedley repeatedly confirmed, an
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`Accused App merely uses Smart Text Selection functionality for which the related instructions are
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`5
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`

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`Case 1:13-cv-00919-JLH Document 494 Filed 04/27/23 Page 7 of 13 PageID #: 51350
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`contained in and at all times remain in the Android Framework. Mr. Toki likewise testified that
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`Smart Text Selection would not work for an Accused App if the related instructions for STS were
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`not present in the Android Framework. See 4/26/23 Trial Tr. (Toki) at 719:20–23 (explaining that
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`if a user had the Gmail app on a pre-Android 8 device, the user “wouldn’t get” Smart Text
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`Selection functionality); id. at 736:25–737:9 (“It’s code for the Android Framework, in the
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`Android source code. . . . The code is not in any application. Like I explained if you ran that same
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`app on a different device that did not have this feature nothing would happen.”).
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`Dr. Smedley nonetheless opined that the instructions for STS in the Android Framework
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`were still used by the Accused Apps. E.g., 4/25/23 Trial Tr. (Smedley) at 294:1–4 (describing the
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`“STS tool” as “code that sits in that Android framework”), 295:13–14 (“there’s a statement, an
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`instruction there that says import . . .”), 299:3–11 (conflating actually “includ[ing] code” with
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`merely “giv[ing] access to other aspects of the Android system,” like the STS code); 371:19–22
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`(stating that the Framework STS code is “part of the instructions of that app” because it “get[s]
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`followed while you’re running that app”). He offered only conclusory testimony that code that he
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`admitted was contained in the Android Framework was somehow still contained in the Accused
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`Apps simply because an Accused App “can turn it off or turn it on,” without regard for where the
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`code is actually contained. 4/25/23 Trial Tr. (Smedley) at 403:10–17; see also id. at 395:9–11
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`(“I’m seeing that it’s on the screen, that input device is sort of inside the app.”), 397:8–17 (believes
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`the Android Framework code is “still part of the first computer program” only because he “traced
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`the code from app specific code and I can see it being included”).
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`This is not enough to avoid judgment as a matter of law of non-infringement. Stewart, 882
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`F. Supp. at 1443 (“The Court must determine not whether there is literally no evidence supporting
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`the non-moving party, but whether there is evidence upon which the jury could properly find for
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`6
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`the non-moving party.”). Applying the Court’s claim construction for “computer program,” the
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`trial record cannot reasonably support jurors concluding that the input device (the STS menu bar)
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`is set up by the instructions contained in Accused Apps.
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`2.
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`The Accused Apps do not “recei[ve] . . . the user command, . . .
`causing a search . . . .”
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`Second, there is no evidence that the Accused Apps “recei[ve] . . . the user command from
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`the input device, causing a search for the search term in the information source.” ’843 Patent,
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`PX0001 at 12:65–13:2. The menu bar set up by STS using instructions in the Android Framework
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`receives the user command and passes it to and through the instructions for Android’s “Intents
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`Handling” system (i.e., the user’s tap on a menu item in order to invoke the second app like the
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`dialer, email, or maps app). 4/26/23 Trial Tr. (Elbouchikhi) at 679:1–9 (describing how the “Intent
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`handling instructions” and their related menu “button” “calls a dialer” via a “URL” that “goes to
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`the Framework. It goes to the Android Framework”). That is, the STS code in the Android
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`Framework thus directly receives any user command from the STS menu bar (the user’s tap on a
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`menu item) without any involvement of the Accused App or its code in order to take the resulting
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`action (dial a phone number, etc.), and Arendi presented no evidence to the contrary. See id.
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`As explained above, Dr. Smedley acknowledged that the instructions invoked by the user
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`command are in the Android Framework and not “imported” into any Accused App. This was
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`further clarified at trial. See 4/26/23 Trial Tr. (Elbouchikhi) at 705:6–16 (“The fact that it runs
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`inside another app’s process . . . doesn’t mean the source code is inside of the app’s source code. .
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`. . It does not mean that the source code is in the same place in any way.”). As Arendi presented
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`no evidence to support its suggestion that any Accused App actually “recei[ves]” the user
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`command, no reasonable juror could find infringement as to that limitation.
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`7
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`Because Arendi offered no evidence that the Accused Apps are a “first computer program”
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`(i.e., self-contained sets of instructions) that receives the user command, there is no factual basis
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`for the jury to find infringement. The Court thus should grant judgment of non-infringement as to
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`Smart Text Selection for all Accused Products.
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`To the extent that Arendi now wants to switch theories and contend that the combination
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`of instructions for the Accused Apps and the Android Framework satisfies the Asserted Claims,
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`no jury could reasonably find infringement. As confirmed by Dr. Smedley’s testimony on both
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`direct and cross-examination, what is accused as being the instructions for the claimed processes
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`in non-transitory memory is the Accused Apps standing alone, not including the Android
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`Framework. 4/25/23 Trial Tr. (Smedley) at 335:23–25 (“So the self-contained set of instructions
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`is each of these apps and the instructions that it includes.”); 4/26/23 Trial Tr. (Smedley) at 534:4–
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`15. No alternative theory has been sponsored, and the fact that the Accused App instructions in
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`non-volatile memory do not include the Android Framework instructions should be dispositive (as
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`explained above). But even if the Court were to deem that alternative theory viable based on the
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`facts presented during trial with respect to the Pixel phones sold by Google and containing both
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`preinstalled Accused Apps and versions 8 or 9 of Android (notwithstanding that Dr. Smedley
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`sponsored a different theory), no reasonable juror could find infringement as to Accused Apps
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`downloaded to devices. Any such theory would require evidence of joint infringement (i.e., that
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`the systems are owned or controlled by Google or that the infringement is the result of a joint
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`enterprise). See Eli Lilly v. Teva, 845 F.3d 1357, 1364–65 (Fed. Cir. 2017). There is no such
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`evidence in the record. Accordingly, the Court should rule as a matter of law that the download of
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`an Accused App onto the non-transitory computer readable memory of a device owned or operated
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`by a third party and with the Android 8 or 9 operating system installed cannot infringe.
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`8
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`B.
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`Google Does Not Make, Use, Sell, Offer For Sale, or Import into the United
`States the Complete Invention Including A Computer Readable Medium
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`Google’s provision of the Accused Apps for download does not directly infringe claim 23
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`or 30 because Google does not make, use, or sell each and every limitation of the claimed
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`invention. Both Asserted Claims require “[a]t least one transitory computer readable medium
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`encoded with instructions . . . .” Dr. Smedley opined that the Accused Apps that users downloaded
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`onto their devices satisfy the limitations of the encoded instructions. 4/26/23 Trial Tr. (Smedley)
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`at 555:10–14 (identifying the computer-readable medium as “nonvolatile memory on a phone that
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`has the 12 accused apps”). Arendi offered no evidence, however, that—aside from the Accused
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`Devices, which is a separate category of allegedly infringing products—Google makes, uses, offers
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`to sell, or sells “computer readable media.” Rather, Dr. Smedley relies on third-party end users
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`downloading the Accused Apps onto their devices’ computer readable media. 4/25/23 Trial Tr.
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`(Smedley) at 454:4–7 (“Q. So for the Google apps, what’s the ‘computer readable medium’? A.
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`So that’s like the – described storage in your computer – in the phone.”). But for the Accused
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`Apps, downloaded by users, Google does not “use” the entire claimed system, because it does not
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`“control” the claimed “computer readable media.” See Centillion, 631 F.3d at 1286. It is well-
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`settled that a claim requiring both software and hardware limitations is not infringed by a party
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`who merely makes software available for download to its customers. See id. at 1286 (“While
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`[Defendant] may make the back-end processing elements, it never ‘uses’ the entire claimed system
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`because it never puts into service the personal computer data processing means. Supplying the
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`software for the customer to use is not the same as using the system.”); id. at 1287 (“While
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`[Defendant] provides software and technical assistance, it is entirely the decision of the customer
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`whether to install and operate this software on its personal computer data processing means.”);
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`Synchronoss, 987 F.3d at 1368 (“Because [Defendant] does not provide its customers with any
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`9
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`hardware in conjunction with its accused software, Dropbox does not make, sell, or offer for sale
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`the complete invention.”).
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`Arendi also apparently alleges infringement based on Accused Apps being kept on
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`Google’s Google Play Store servers before being downloaded by users—though Arendi does not
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`accuse the servers themselves of infringement and Mr. Weinstein offered no damages model (in
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`his reports or at trial) based on Google Play Store servers. 4/25/23 Trial Tr. (Smedley) at 454:8–
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`11 (“Where [the Accused Apps are] stored on the Play Store is also a computer readable
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`medium.”); 4/26/23 Trial Tr. (Smedley) at 555:16–18 (identifying a second computer-readable
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`medium—“When the apps are on the Google Play servers, they are also on the non-transitory . . .
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`computer readable medium”—but not opining on damages tied to those servers). But Arendi
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`offered no evidence that the Google Play Store servers included the Android framework code
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`necessary to run the Accused Apps and implement STS as accused—in fact, Dr. Smedley indicated
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`that they would not. 4/26/23 Trial Tr. (Smedley) at 555:22–24 (“I don’t know how the back end
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`of the Google Play Store works. Maybe you can [run the Accused Apps], maybe you can’t. But as
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`far as I know, you can’t.”).
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`C.
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`No Viable Infringement Allegations Prior to STS Being Enabled.
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`STS was not enabled until December 5, 2017; therefore, even assuming that Arendi’s trial
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`evidence could survive a Rule 50(a) motion on the claim elements addressed in detail above, no
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`reasonable juror could conclude that any Accused Product infringes any of the Asserted Claims
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`before December 2017. Arendi’s infringement theories are premised on accused STS functionality
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`that first became available in 2017 via the Android 8.0 update release (and Smart Text Selection
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`does not work on prior versions of the Android Operating System). See 4/26/23 (Smedley) Trial
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`Tr. at 547:8–13 (confirming that “[i]f this code didn’t exist in Android 8, then the 12 apps would
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`not infringe”); id. at 556:5–7 (“Android 7 doesn’t have the code for Smart Text Selection built into
`
`10
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`the framework”). But the machine-learning models that operate at the core of Smart Text Selection
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`were disabled in the initial release of Android 8. 4/27/23 Trial Tr. (Toki) at 738:20–740:11; 4/27/23
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`Trial Tr. (Elbouchikhi) at 680:21–682:2; Trial Tr. 4/27/23 (Choc) at 790:11–791:8. Those models
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`were first enabled in Android O-MR1—that is, maintenance release 1 of Android 8. See id. So
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`until the December 2017 release of Android O-MR1, the evidence shows, no accused Smart Text
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`Selection would work with the Accused Apps. See id. Accordingly, the accused computer-readable
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`medium was not encoded with instructions that could establish the processes claimed. Arendi has
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`presented no contrary evidence—its theory rests on the argument that STS was released in
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`connection with Android 8, and the first version of Android 8 was released in August 2017. The
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`undisputed testimony, however, proves that the release date of Android 8 does not coincide with
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`when the accused STS was turned on.2
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`IV. CONCLUSION
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`As Arendi offered no evidentiary basis for the jury to find infringement for the Accused
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`Products, the Court should grant judgment of non-infringement as a matter of law.
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`2 Google’s stipulations related to representative versions of the Android source code and accused
`Pixel devices neither prove nor suggest otherwise. Those stipulations related to whether one set
`of code or one device was representative of others and say nothing about when the accused
`functionality was first enabled.
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`11
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`Case 1:13-cv-00919-JLH Document 494 Filed 04/27/23 Page 13 of 13 PageID #: 51356
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`POTTER ANDERSON & CORROON LLP
`
`By: /s/ David E. Moore
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`abrown@potteranderson.com
`
`
`Attorneys for Defendant Google LLC
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`OF COUNSEL:
`
`Robert W. Unikel
`John Cotiguala
`Matt Lind
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Tel: (312) 449-6000
`
`Robert R. Laurenzi
`Chad J. Peterman
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 318-6000
`
`Ginger D. Anders
`MUNGER, TOLLES & OLSON LLP
`601 Massachusetts Avenue NW, Suite 500E
`Washington, D.C. 20001
`Tel: (202) 220-1100
`
`Vincent Y. Ling
`MUNGER, TOLLES & OLSON LLP
`350 S. Grand Avenue, 50th Floor
`Los Angeles, CA 90071
`Tel: (213) 683-9100
`
`Dated: April 27, 2023
`10780791 / 12599.00040
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`12
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