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`
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`Case 2:22-md-03034-TGB ECF No. 287-1, PageID.30991 Filed 09/30/24 Page 2 of 4
`Case: 23-1101 Document: 76 Page: 1 Filed: 09/25/2024
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ECOFACTOR, INC.,
`Plaintiff-Appellee
`
`v.
`
`GOOGLE LLC,
`Defendant-Appellant
`______________________
`
`2023-1101
`______________________
`
`Appeal from the United States District Court for the
`Western District of Texas in No. 6:20-cv-00075-ADA, Judge
`Alan D. Albright.
`______________________
`
`ON PETITION FOR REHEARING EN BANC
`______________________
`
`ROBERT A. VAN NEST, Keker, Van Nest & Peters LLP,
`San Francisco, CA, filed a petition for rehearing en banc for
`Google LLC. Also represented by STEPHANIE JILL GOLD-
`BERG, KRISTIN ELIZABETH HUCEK, LEO L. LAM, ROBERT
`ADAM LAURIDSEN, EUGENE M. PAIGE.
`
`
`REZA MIRZAIE, Russ August & Kabat, Los Angeles, CA,
`
`filed a response to the petition for EcoFactor, Inc. Also rep-
`resented by KRISTOPHER DAVIS, MARC A. FENSTER, MINNA
`JAY, BRIAN DAVID LEDAHL, JAMES PICKENS.
` ______________________
`
`
`
`Case 2:22-md-03034-TGB ECF No. 287-1, PageID.30992 Filed 09/30/24 Page 3 of 4
`Case: 23-1101 Document: 76 Page: 2 Filed: 09/25/2024
`
`2
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`ECOFACTOR, INC. v. GOOGLE LLC
`
`Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA,
`TARANTO, CHEN, HUGHES, STOLL, and STARK, Circuit
`Judges.1
`
`PER CURIAM.
`
`O R D E R
` Google LLC (Google) filed a petition for rehearing en
`banc. A response to the petition was invited by the court
`and filed by EcoFactor, Inc. (EcoFactor). The court also ac-
`cepted amicus briefs filed by US*Made, Garmin Interna-
`tional, Inc., Red Hat, Inc., SAP America, Inc., SAS
`Institute, Inc., Symmetry, LLC, Tesla, Inc., Vizio, Inc.,
`Dell, Inc., Intel Corporation, Cisco Systems, Inc., Apple
`Inc., and Lawyers for Civil Justice.
`The petition and response were referred to the circuit
`judges in regular active service. A poll was requested and
`taken, and the court decided that the appeal warrants en
`banc consideration.
`
`Accordingly,
`
`IT IS ORDERED THAT:
`(1) The petition for rehearing en banc is granted.
`(2) The panel opinion in EcoFactor, Inc. v. Google LLC,
`No. 2023-1101, 104 F.4th 243 (Fed. Cir. 2024), is va-
`cated, and the appeal is reinstated.
`(3) The parties are requested to file new briefs, which
`shall be limited to addressing the district court’s ad-
`herence to Federal Rule of Evidence 702 and Daub-
`ert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
`579 (1993), in its allowance of testimony from Eco-
`Factor’s damages expert assigning a per-unit
`
`
`1 Circuit Judge Newman and Circuit Judge Cun-
`ningham did not participate.
`
`
`
`Case 2:22-md-03034-TGB ECF No. 287-1, PageID.30993 Filed 09/30/24 Page 4 of 4
`Case: 23-1101 Document: 76 Page: 3 Filed: 09/25/2024
`
`ECOFACTOR, INC. v. GOOGLE LLC
`
`3
`
`royalty rate to the three licenses in evidence in this
`case.
`(4) Google’s en banc opening brief is due 45 days from
`the date of this order. EcoFactor’s en banc response
`is due within 45 days of Google’s en banc opening
`brief, and Google’s reply brief within 30 days of the
`response brief. The parties may file a supplemental
`appendix within 7 days after service of the reply
`brief. The court requires 30 paper copies of all briefs
`and appendices provided by the filer within 5 busi-
`ness days from the date of electronic filing of the
`document. The parties’ briefs must comply with
`Fed. Cir. R. 32(b)(1).
`(5) Any briefs of amici curiae may be filed without con-
`sent and leave of the court. Any amicus brief sup-
`porting Google’s position or supporting neither
`position must be filed within 14 days after service
`of Google’s en banc opening brief. Any amicus brief
`supporting EcoFactor’s position must be filed
`within 14 days after service of EcoFactor’s response
`brief. Amicus briefs must comply with Fed. Cir. R.
`29(b).
`(6) Oral argument will be held at a time and date to be
`announced later.
`
`
`
`
`
`
`
`
`
`September 25, 2024
` Date
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`FOR THE COURT
`
`
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`
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