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`Plaintiff,
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`GODADDY.COM, LLC,
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`Defendant.
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`Civil Action No. 1:19-cv-01937-MFK
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 1 of 19 PageID #: 44641
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`MEMORANDUM OPINION AND ORDER
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`MATTHEW F. KENNELLY, District Judge:
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`
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`Express Mobile, Inc. sued GoDaddy.com, LLC alleging that two of GoDaddy's
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`products—Website Builder (WSB) and Managed WordPress (MWP)—willfully infringe
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`numerous claims of certain patents owned by Express Mobile that are directed to tools
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`for displaying content on mobile devices.1 Express Mobile's claims went to a jury trial in
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`late February 2023. In addition to asserting a defense of non-infringement, GoDaddy
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`contended that Express Mobile's patents were invalid. The jury found in GoDaddy's
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`favor on the question of infringement and willfulness but found in favor of Express
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`Mobile on the question of invalidity. Because it found in favor of GoDaddy on the
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`question of infringement, the jury awarded Express Mobile no damages.
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`
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`After the close of GoDaddy's case in chief, Express Mobile moved for judgment
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`as a matter of law under Federal Rule of Civil Procedure Rule 50(a). The Court took the
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`motion under advisement. Express Mobile has now renewed its Rule 50 motion and
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`1 Express Mobile contends that GoDaddy's WSB and MWP products infringe claims 1,
`3, 12, 16, and 22 of U.S. Patent No. 9,063,755 (the '755 patent); claims 1 and 13 of U.S.
`Patent No. 9,471,287 (the '287 patent); and claims 1, 11, 13, 17, and 19 of U.S. Patent
`No. 9,928,044 (the '044 patent).
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 2 of 19 PageID #: 44642
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`has also moved for a new trial under Federal Rule of Civil Procedure 59(a). For the
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`reasons set forth below, the Court denies both motions.
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`Background
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`
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`The Court assumes familiarity with this case's factual and procedural
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`background, which the Court has discussed in prior written opinions. The following
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`background is relevant to the post-trial motions and largely is taken from the Court's
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`summary judgment decision.
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`A.
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`The asserted patents
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`
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`The asserted patents relate to two concepts that allow web designers to integrate
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`third-party web services into their websites. The patents disclose an authoring tool that
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`generates two sets of code, a device-independent application and a device-specific
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`player. Second, the patents disclose an authoring tool that allows for integration of web
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`services into the application and player.
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`B.
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`The accused products
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`
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`Two GoDaddy products are at issue in this case. WSB is a browser-based
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`website creator, designed to allow a user with little or no website design experience to
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`quickly create and publish a website. MWP, in contrast, targets more advanced users.
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`It comprises a set of custom functionalities that GoDaddy has added to WordPress, an
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`open-source (i.e. free) platform for creating websites. Both WSB and MWP allow for
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`incorporation of features into a user's website, such as YouTube videos or embedded
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`Twitter feeds. GoDaddy provides several free themes for use in designing a website,
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`but users can also buy third-party themes for use with the MWP platform.
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`C.
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`Claim construction
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`2
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 3 of 19 PageID #: 44643
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`
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`Two orders have previously been issued in this case construing certain disputed
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`claim terms. Express Mobile, Inc. v. GoDaddy.com, LLC, No. 19-1937-RGA, 2021 WL
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`2209868 (D. Del. Jun. 1, 2021), and Express Mobile, Inc. v. GoDaddy.com, LLC, No.
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`19-1937-MFK, Mem. Op. and Order (dkt. no. 261) (D. Del. Aug. 8, 2022). The claim
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`terms relevant to the issues decided at trial were construed as follows:
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`registry
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`player
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`device-dependent code
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`
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`D.
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`Evidence at trial
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`"a database that is used for computing
`functionality"
`"device-specific code which contains
`instructions of a device and which is
`separate from the Application"
`code that is specific to the operating
`system, programming language, or
`platform of a device
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`
`
`As relevant to the contentions Express Mobile has made in its motions, the
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`following witnesses testified during the trial, either live or via deposition:
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`• Dr. Kevin Almeroth, Express Mobile's infringement expert
`• Peter Kent, GoDaddy's infringement expert
`• Steven Rempell, CEO of Express Mobile
`• Ken Brown, Inventor of the asserted patents
`• Franklin Jarrett, GoDaddy engineer
`• Aaron Silvas, GoDaddy engineer
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`On a high level, GoDaddy argued that Express Mobile made a bad bet when it
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`
`
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`filed its patent applications back in 2008, as the patents are directed to device-specific
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`players that have since been rendered obsolete. GoDaddy argued that, by contrast, its
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`WSB and MWP products operate not via players but on browsers and that they use
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`programming language such as JavaScript that is completely device-independent,
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`which GoDaddy argued is necessary in the ever-evolving technological space of
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`smartphones.
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`3
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 4 of 19 PageID #: 44644
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`
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`The asserted patents recite nineteen claim elements. Kent testified, and
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`GoDaddy argued based on his testimony, that neither WSB nor MWP infringe the
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`asserted patents because they do not include three of the nineteen required claim
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`elements: (1) "player" code that receives web service output; (2) "registry"; or (3)
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`"symbolic names."
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`Regarding the player limitation, Dr. Almeroth testified, and Express Mobile
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`argued based on his testimony, that WSB and MWP include device-dependent
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`JavaScript player code that branches and accounts for different browser platforms.
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`Because the player is also required to "receive the output symbolic name and
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`corresponding one or more output values and provide[] instructions for a display of the
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`device to present an output value," JTX-001 at claim 1, and because GoDaddy's
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`products are browser-based, Dr. Almeroth testified that WSP and MWP infringe
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`because their JavaScript players contain browser detection code that work together with
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`other code to receive inputs and display outputs.
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`
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`GoDaddy, for its part, argued that JavaScript—the primary programming
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`language used in WSP and MWP—can work on all browsers and is thus not device-
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`dependent-code. This argument was based in part on Kent's testimony that a browser
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`cannot constitute a platform under the Court's construction of the "player" claim term.
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`GoDaddy also argued that Dr. Almeroth confirmed on cross examination that the only
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`specific code segments in each of the files that Express Mobile contends received the
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`web service outputs were not, in fact, device-dependent code.
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`
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`Regarding symbolic names, Dr. Almeroth testified, and Express Mobile argued
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`based on his testimony, that WSB and MWP use a registry that stores symbolic names,
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`4
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 5 of 19 PageID #: 44645
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`and that those symbolic names are incorporated into HTML code that is sent from
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`GoDaddy's servers to its customers' web browsers. It further argued that the symbolic
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`names stored in the registry were used for evoking web components.
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`
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`By contrast, Kent testified, and GoDaddy argued based on his testimony, that to
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`be a symbolic name, the name must evoke one or more web components and must be
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`stored in a registry—a claim term that the Court construed as "a database used for
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`computing information." Thus, GoDaddy argued, because the existence of a registry is
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`required for the symbolic name claim element to be infringed (and vice versa)—and
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`because the accused symbolic name does not evoke one or more web components or
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`is not stored in a database—then there is no infringement. Kent explained that what Dr.
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`Almeroth pointed to as symbolic names were actually something called "div IDs," which
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`are randomly generated and thus cannot be stored in a registry. Kent also explained
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`that, to the extent symbolic names or registry exist in WSB or MWP at all, they are kept
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`and stored by the external web services intended to be accessed—like YouTube—and
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`not by GoDaddy.
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`A.
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`Applicable law
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`Discussion
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`
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`For issues that are not patent-law-specific, the Federal Circuit defers to the law of
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`the regional circuit in which the district court sits—here, the United States Court of
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`Appeals for the Third Circuit. Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1248
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`(Fed. Cir. 2005); see also, In re Cambridge Biotech Corp., 186 F.3d 1356, 1367 (Fed.
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`Cir. 1999) ("we apply our own law with respect to issues of substantive patent law and
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`certain procedural issues pertaining to patent law, but as to nonpatent issues, we apply
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`5
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 6 of 19 PageID #: 44646
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`the law of the circuit in which the district court sits."). The Federal Circuit "review[s] the
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`denial or grant of JMOL under regional circuit law." ActiveVideo Networks, Inc. v.
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`Verizon Commc'ns, Inc., 694 F.3d 1312, 1319 (Fed. Cir. 2012).
`
`B.
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`Standard for JMOL
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`
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`Express Mobile has moved for judgment as a matter of law (JMOL) on all of its
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`infringement claims, or in the alternative for a new trial. Under Federal Rule of Civil
`
`Procedure 50(b), JMOL is proper only if "viewing the evidence in the light most
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`favorable to the nonmovant and giving it the advantage of every fair and reasonable
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`inference, there is insufficient evidence from which a jury reasonably could find" for the
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`nonmovant. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.
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`1993) (citing Wittekamp v. Gulf & Western Inc., 991 F.2d 1137, 1141 (3d Cir.
`
`1993)). "The question is not whether there is literally no evidence supporting the party
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`against whom the motion is directed but whether there is evidence upon which the jury
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`could properly find a verdict for that party." Id. (quoting Patzig v. O'Neil, 577 F.2d 841,
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`846 (3d Cir. 1978)).
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`
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`To grant JMOL on infringement in favor of Express Mobile, the party with the
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`burden of proof, the Court "must be able to say not only that there is sufficient evidence
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`to support the finding [sought by Express Mobile] . . . but additionally that there is
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`insufficient evidence for permitting any different finding." Fireman's Fund Ins. Co. v.
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`Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir. 1976) (emphasis added); see also,
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`Smollett v. Skayting Dev. Corp., 793 F.2d 547, 548 (3d Cir. 1986) (motion for JMOL
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`must be denied when "the record contains the minimum quantum of evidence from
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`which a jury might reasonably afford relief").
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`6
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 7 of 19 PageID #: 44647
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`
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`In assessing Express Mobile's motion, the Court must also give GoDaddy, the
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`non-movant, "the benefit of all logical inferences that could be drawn from the evidence
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`presented" and "resolve all conflicts in the evidence in [GoDaddy's] favor and, in
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`general, view the record in the light most favorable to [GoDaddy]." Williamson v.
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`Consol. Rail Corp., 926 F.2d 1344, 1348 (3d Cir. 1991).
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`
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`The Third Circuit has held that motions for judgment as a matter of law under
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`Rule 50(b) should be granted only sparingly. Marra v. Phila. Hous. Auth, 497 F.3d 286,
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`300 (3d Cir. 2007) (citation omitted). This is particularly true when, as just discussed,
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`the movant bears the burden of proof. Fireman's Fund Ins. Co., 540 F.2d at 1177 (entry
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`of JMOL after a jury verdict "is rare[ ] [and] reserved for extreme circumstances.").
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`C.
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`Standard for a new trial
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`
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`The Court has discretion to grant a new trial under Rule 59(a) "for any of the
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`reasons for which new trials have heretofore been granted in actions at law in the courts
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`of the United States." Fed. R. Civ. P. 59(a). Some reasons for granting a new trial are:
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`(1) the jury's verdict is against the clear weight of the evidence and a new trial is
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`necessary to prevent a miscarriage of justice; (2) improper conduct by an attorney or
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`the Court unfairly influenced the verdict; or (3) the jury's verdict was facially inconsistent.
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`See Ateliers de la Haute-Garonne v. Broetje Automation-USA Inc., 85 F. Supp. 3d 768,
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`775 (D. Del. 2015).
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`D.
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`Summary of Express Mobile's motion
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`
`
`Express Mobile raises two grounds for JMOL or, in the alternative, a new trial.2
`
`
`2 Express Mobile also appears to raise an amorphous third basis, namely that GoDaddy
`confused the jury with irrelevant "strawmen," Mot. for J. as a Matter of Law at 16, such
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`
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`7
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 8 of 19 PageID #: 44648
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`First, it contends that GoDaddy misled the jury by consistently misstating and
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`contradicting the Court's claim constructions for player, device-dependent code, and
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`registry. Express Mobile contends that, under the correct claim constructions adopted
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`by the Court, no reasonable jury could have found that GoDaddy did not infringe the
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`asserted patents. Second, Express Mobile contends that the jury's verdict was unfairly
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`influenced by improper testimony from two witnesses that GoDaddy called as fact
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`witnesses but who Express Mobile contends provided undisclosed expert testimony.
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`The Court will address each of these arguments in turn.
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`E.
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`
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`Claim construction-related issues
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`"[T]he claims of a patent define the invention to which the patentee is entitled the
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`right to exclude." Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d
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`1111, 1115 (Fed. Cir. 2004). "Literal infringement of a claim exists when every limitation
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`recited in the claim is found in the accused device." Kahn v. Gen. Motors Corp., 135
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`F.3d 1472, 1477 (Fed. Cir. 1998) (emphasis added).
`
`
`
`Express Mobile contends that it presented to the jury uncontradicted evidence
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`that all of the asserted claims' limitations—including the three that GoDaddy argued
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`were missing from its products—were met by WSB and MWP. Specifically, it contends
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`that Dr. Almeroth "identif[ied] exemplary portions of source code and related evidence
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`for each and every limitation of all Asserted Claims for both WSB and MWP, with a
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`particular focus on contact form and add to cart web service implementations of the
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`
`as: (1) its overuse of the YouTube web service example to illustrate some of its
`arguments regarding the symbolic names limitation; and (2) its arguments regarding div
`IDs. But it offers no authority for the proposition that "red herring"-type arguments—if
`that characterization is even accurate—would entitle it to either JMOL or a new trial. Id.
`8
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 9 of 19 PageID #: 44649
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`respective products." Mot. for J. as a Matter of Law at 4. Thus, it contends that there is
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`no evidentiary basis in the record on which the jury could have found non-infringement
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`for any of the disputed claim elements.
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`
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`As for GoDaddy's evidence showing non-infringement, Express Mobile contends
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`that it was premised upon constructions of claim terms that contradicted the Court's
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`claim construction rulings. It is settled law that "[n]o party may contradict the court's
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`construction to a jury." Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1321
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`(Fed. Cir. 2009).
`
`
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`Regarding the player limitation, Express Mobile contends that GoDaddy
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`argued—contrary to the Court's claim construction of device-dependent code as "code
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`that is specific to the operating system, programming language, or platform of a device"
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`—that its JavaScript player was not a device-dependent code because device-
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`dependent code is limited to code specific to the operating system of a device. This,
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`Express Mobile contends, obviates the "programming language, or platform" language
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`in the Court's construction. This is significant, Express Mobile says, because it argued
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`that the accused browser constitutes a "platform" under the Court's construction, which
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`means the browser's code is device-dependent code and thus a player.
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`
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`Next is the registry limitation, construed by the Court as meaning "a database
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`that is used for computing functionality." Express Mobile contends that GoDaddy
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`improperly narrowed the term's construction to a structured database. Express Mobile
`
`contends that a "database," according to the Court's construction of the registry term,
`
`can include a file and need not be structured.
`
`There are multiple problems with Express Mobile's arguments. First, the Court is
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`9
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 10 of 19 PageID #: 44650
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`not persuaded that GoDaddy presented a modified or narrowed version of the Court's
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`claim construction to the jury. GoDaddy consistently included programming language or
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`platforms in its arguments at trial regarding the "device-dependent code" term. See.
`
`e.g., Trial Tr. at 1024-26 (explaining during closing arguments how device specific code
`
`encompasses code specific to certain operating systems, programming languages, or
`
`platforms). And contrary to Express Mobile's contention, GoDaddy expert witness Kent
`
`also testified that, consistent with the Court's construction, device-dependent code could
`
`include dependency on the operating system, programming language, or platform, not
`
`merely on an operating system. Id. at 618:12-619:23, 676:16-23, 697:23-698:10, and
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`699:24-700:8. On the "registry" term, contrary to Express Mobile's view, the Court's
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`construction does not require it to include a simple, unstructured database. In addition,
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`as GoDaddy points out, the slides it showed to the jury and used during Kent's
`
`testimony could not have more clearly spelled out each of the Court's claim
`
`constructions that Kent was using to render his opinions on infringement of those
`
`claims.
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`
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`Second, Express Mobile is essentially raising a claim construction argument
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`regarding the meaning of the terms "platform" and "database" under the guise of a
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`challenge to the sufficiency of the evidence of noninfringement. That is, Express
`
`Mobile's argument invites the Court to hold that a browser may constitute a platform,
`
`and vice versa, and that a simple file may constitute a database. But the Court did not
`
`construe the terms platform or database. "In the absence of such a construction . . . the
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`jury was free to rely on the plain and ordinary meaning of the term[s] [platform and
`
`database] and conclude"—consistent with Kent's testimony—that a browser is not a
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`10
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 11 of 19 PageID #: 44651
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`platform under the Court's construction of device-dependent code (and therefore,
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`player), and that a file is not a database under the Court's construction of registry.
`
`ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 520 (Fed. Cir. 2012). Moreover, "[a]
`
`sound claim construction need not always purge every shred of ambiguity, including
`
`potential ambiguity arising from the words a court uses to construe a claim term."
`
`Rembrandt Wireless Techs., LP v. Samsung Elecs. Co., 853 F.3d 1370, 1378–79 (Fed.
`
`Cir. 2017) (internal quotation marks omitted). "Such an endeavor could proceed ad
`
`infinitum." Eon Corp. IP Holdings v. Silver Spring Networks, 815 F.3d 1314, 1318 (Fed.
`
`Cir. 2016).
`
`
`
`Third, even assuming that Express Mobile is correct that GoDaddy misled the
`
`jury about the proper claim constructions, that would not automatically entitle Express
`
`Mobile to JMOL. "Where an [non]infringement verdict relies on incorrect construction of
`
`the disputed claim terms, this court may grant JMOL or order a new trial to correct the
`
`error, depending on the degree of difference between the incorrect construction and the
`
`correct construction." Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1333 (Fed.
`
`Cir. 2008). Express Mobile has not persuaded the Court that the degree of difference
`
`between the allegedly incorrect constructions used by GoDaddy/Kent and the Court's
`
`constructions—if there is even a difference—is significant enough to entitle it to JMOL.
`
`To hold otherwise would "constitute a usurpation of the jury's province as factfinder."
`
`Garrison v. Mollers N. Am., Inc., 820 F. Supp. 814, 819 (D. Del. 1993).
`
`
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`Express Mobile's other argument on this point is that "[u]nder the correct claim
`
`constructions, Express Mobile presented undisputed evidence that WSB and MWP"
`
`infringe the asserted patents, and that "no reasonable jury could have concluded
`
`
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`11
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`Case 1:19-cv-01937-MFK-JLH Document 341 Filed 07/05/23 Page 12 of 19 PageID #: 44652
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`otherwise." Mot. for J. as a Matter of Law at 2. But the evidence presented by Express
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`Mobile was disputed, and "when there is conflicting testimony at trial, and the evidence
`
`overall does not make only one finding on the point reasonable, the jury is permitted to
`
`make credibility determinations and believe the witness it considers more trustworthy."
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`MobileMedia Ideas LLC v. Apple Inc., 780 F.3d 1159, 1168 (Fed. Cir. 2015). When
`
`evaluating a motion for JMOL, "the court may not weigh the evidence, determine the
`
`credibility of witnesses, or substitute its version of the facts for the jury's version."
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`Lightning Lube, Inc., 4 F.3d at 1166.
`
`
`
`Express Mobile cites Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306,
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`(Fed. Cir. 2003), and contends that, in that case, the Federal Circuit "revers[ed] denial
`
`of JMOL where 'the district court allowed the jury to add an additional limitation to the
`
`district court's construction' and this error altered the verdict because there was 'no
`
`alternative basis upon which a reasonable jury could find' noninfringement." Mot. for J.
`
`as a Matter of Law at 11 (quoting Moba, B.V., 325 F.3d at 1322). But even if GoDaddy
`
`did add additional limitations to the Court's construction—which, again, the Court is not
`
`persuaded it did—in this case there were alternative bases upon which a reasonable
`
`jury could find noninfringement. Again, GoDaddy argued that its products were missing
`
`three of the required claim elements taught by the patents, and a finding of
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`noninfringement on any one of those claim elements would have entitled GoDaddy to
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`the same verdict. It is not enough for Express Mobile to argue the jury should have
`
`found in its favor, it must establish "there is insufficient evidence for permitting any
`
`different finding" other than that of infringement. Fireman's Fund Ins. Co., 540 F.2d at
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`1171 (emphasis added). Express Mobile has not made that showing.
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`
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`12
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`
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`In sum, the Court presumes, as it must at this stage, that the jury credited Kent's
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`testimony over Dr. Almeroth's in finding that the accused instrumentalities did not
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`infringe the asserted claims as construed by the Court—specifically that the WSB and
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`MWP platforms did not include: (1) "player" code, (2) "symbolic names," or (3) a
`
`"registry." The trial record demonstrates that the jury received sufficient evidence from
`
`which it could reasonably find that GoDaddy's products do not infringe. The Court
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`therefore denies Express Mobile's renewed motion for JMOL on this basis.
`
`
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`The next question is whether the cited conduct entitles Express Mobile to a new
`
`trial. The Court is not persuaded that a new trial is warranted. As Express Mobile
`
`argues, "[a] court may grant a new trial when 'the jury's verdict is against the clear
`
`weight of the evidence, and a new trial must be granted to prevent a miscarriage of
`
`justice.'" Mot. for J. as a Matter of Law at 3 (quoting Genzyme Corp. v. Atrium Med.
`
`Corp., 315 F. Supp. 2d 552, 562 (D. Del. 2004)). Express Mobile also contends that "[a]
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`court may . . . grant a new trial 'when improper conduct by an attorney or the court
`
`unfairly influenced the verdict.'" Id. (quoting Zarow-Smith v. New Jersey Transit Rail
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`Operations, Inc., 953 F. Supp. 581, 584–85 (D.N.J. 1997)). Neither situation is present
`
`here. As just discussed, the clear weight of the evidence did not lean in favor of a
`
`verdict of infringement. Nor were the arguments made by GoDaddy, when considered
`
`"as a whole," "so constantly and effectively addressed to the prejudices of the jury that
`
`[the Court] must order a new trial." Draper v. Airco, Inc., 580 F.2d 91, 97 (3d Cir. 1978).
`
`F.
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`
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`Undisclosed expert witness testimony
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`Express Mobile next contends that it is entitled to JMOL or, in the alternative, a
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`new trial because GoDaddy presented undisclosed expert rebuttal testimony through
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`two of its fact witnesses that resulted in "jury confusion and error." Mot. for J. as a
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`Matter of Law at 16. The Court sees—and Express Mobile presents—no viable
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`argument for JMOL on this basis, so it will consider Express Mobile's contentions on this
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`point only as support for its motion for a new trial. Express Mobile again contends that
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`"a court may [] grant a new trial 'when improper conduct by an attorney or the court
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`unfairly influenced the verdict,'" id. at 3 (quoting Zarow-Smith, 953 F. Supp. at 584–85),
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`or based on "substantial errors in admission or rejection of evidence." Montgomery
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`Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940).
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`Under Federal Rule of Civil Procedure 26(a)(2)(A), a party must disclose the
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`identity of a witness who is going to present expert (i.e., non-lay person) testimony.3
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`Rule 26(a)(3)(B) requires that disclosure to be made at least thirty days before trial
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`unless the court orders otherwise. A disclosure under Rule 26(a)(2)(A) must be
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`accompanied by a statement of "the subject matter on which the witness is expected to
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`present evidence under Federal Rule of Evidence 702, 703, or 705" and "a summary of
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`the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P.
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`26(a)(2)(C). A party that fails to make a disclosure required by Rule 26(a) is precluded
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`from relying on that evidence on a motion or at trial unless the failure to disclose was
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`"substantially justified or harmless." Fed. R. Civ. P. 37(c)(1).
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`During the trial, GoDaddy called as witnesses Aaron Silvas and Franklin Jarrett,
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`two of its engineers who worked on WSP and MWP, respectively. Express Mobile
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`contends that their testimony: (1) ran afoul of Rules 26(a)(2)(A) and 26(a)(2)(C)
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`3 There are, of course, additional requirements for retained witnesses who will present
`expert testimony, see Fed. R. Civ. P. 26(a)(2)(B), but that is not what is at issue here.
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`because it was not timely or properly disclosed; and (2) should have been barred
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`because "it is an abuse of discretion to permit a witness to testify as an expert on the
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`issue[] of noninfringement . . . unless that witness is qualified as an expert in the
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`pertinent art . . . . [and this] prohibition of unqualified witness testimony extends to the
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`ultimate conclusion[] of infringement . . . as well as to the underlying technical
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`questions." HVLPO2, LLC v. Oxygen Frog, 949 F.3d 689, 689 (Fed. Cir. 2020).
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`Both of these contentions lack merit, as they are based on the mistaken premise
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`that the testimony of Silvas and Jarrett amounted to rebuttal expert testimony. But
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`Express Mobile's argument regarding this testimony fails for an even more basic
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`reason: Express Mobile failed to contemporaneously object to any of Silvas and Jarrett's
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`testimony during the trial.
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`As GoDaddy points out, this post trial motion is not the first time Express Mobile
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`has asserted a challenge to the testimony of Silvas and Jarrett. During the final pretrial
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`conference, the Court heard arguments regarding Express Mobile's motion in limine
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`number seven, in which it sought to preclude Jarrett and Silvas from offering expert
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`opinions on GoDaddy's source code. The Court concluded that it could not rule on this
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`in vacuum and that Express Mobile would have to assert any such objections at trial.
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`The Court stated, quite unambiguously, that it was "going to do this the way Judge
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`Andrews did, and it's going to be based on objections that are made at the trial and
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`everybody basically acts at their peril. It's just that simple." Pretrial Conf. Tr. at 27:8-24
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`(emphasis added). The Court went on to say:
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`So, you know, I'll determine when I get an objection whether -- if it
`concerns the dividing line between fact and opinion testimony, I'll
`determine based on whatever foundation's been laid, which side of the line
`it's on. And if I conclude it's on the opinion side of the line, and there's not
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`a sufficient disclosure under Rule 26(a), then it's probably going to get
`excluded. And if I conclude it's on the fact side of the line, then it's
`probably not going to get excluded. So -- but I just think it would be
`borderline reckless for me to try to define that line right now. I think that's
`best dealt with by, A, people being careful, and, B, objections and ruling
`on the objections. So that's what I'm going to do.
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`Id. at 27:15–28:2 (emphasis added). The Court therefore denied Express Mobile's
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`motion in limine "without prejudice to making objections at trial." Id. at 28:3-4 (emphasis
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`added).
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`On the morning of the third day of trial, before the jury entered the courtroom,
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`Express Mobile again raised its concerns regarding Jarrett and Silvas's testimony.
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`Specifically, counsel for Express Mobile stated that, because Jarrett and Silvas were
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`going to be shown and asked about some of the same exhibits that Dr. Almeroth used
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`to conduct his infringement analysis, it appeared that GoDaddy sought "to implicitly or
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`explicitly, you know, engage in a rebuttal." Trial Tr. at 468:14-16. The Court overruled
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`the objection, concluding that the mere fact that these witnesses would be shown
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`exhibits that had been shown to an expert was not enough to make their testimony
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`expert testimony. The Court further stated, "as it's characterized, I don't think it's expert
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`testimony . . . . [and] the jury's basically told they're to evaluate expert testimony and
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`fact testimony the same way." Id. at 470:9-13. The Court instructed GoDaddy,
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`however, that it was not to refer to Dr. Almeroth when showing Jarrett or Silvas these
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`exhibits or asking questions about them.
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`According to Express Mobile, Jarrett and Silvas proceeded to charge ahead past
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`the Court's directive and give what Express Mobile contends was undisclosed expert
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`testimony rebutting that of Dr. Almeroth. But Express Mobile did not make a single
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`contemporaneous objection to their testimony. Again, the Court had clearly instructed
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`Express Mobile during the pretrial conference that if it believed that Jarrett or Silva were
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`asked during the trial to render expert testimony during the trial, it would be incumbent
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`upon Express Mobile to object at that time. And the Court provided more guidance
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`about what the appropriate boundaries might be on the morning Jarrett and Silvas took
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`the stand, when Express Mobile raised the issue for the second time. But Express
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`Mobile still did not object to either witness's testimony as it was unfolding, as it was
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`required to do.
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`In fact, the only objection Express Mobile made contemporaneously concerned
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`not the content of Jarrett or Silvas's testimony, but a single exhibit that was not timely
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`disclosed as an exhibit that would be used during Jarrett's testimony.4 But GoDaddy's
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`failure to include that exhibit—PTX-550D—in Jarrett's exhibit binder is not a violation of
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`the Federal Rules of Civil Procedure that could even conceivably entitle Express Mobile
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`to a new trial. Instead, it was a mere violation of paragraph 47 of the parties' mutual
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`agreement—as contained in the joint pretrial ord