Case 1:14-cv-02396-PGG-SN Document 249-1 Filed 04/07/21 Page 1 of 7
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`Exhibit A
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`Case 1:14-cv-02396-PGG-SN Document 249-1 Filed 04/07/21 Page 2 of 7
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`CONFIDENTIAL—OUTSIDE COUNSEL ONLY
`SUBJECT TO PROTECTIVE ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`NETWORK-1 TECHNOLOGIES, INC.
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`Plaintiff,
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`- against -
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`GOOGLE LLC and YOUTUBE, LLC
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`Defendants.
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`14 Civ. 2396 (PGG-SN)
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`14 Civ. 9558 (PGG-SN)
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`DEFENDANTS’ FIFTH SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
`PLAINTIFFS’ INTERROGATORY NOS. 7 & 13
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`Pursuant to Rules 26(e) and 33 of the Federal Rules of Civil Procedure, Google LLC
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`(“Google”) and YouTube, LLC (“YouTube”) (collectively “Defendants”) by and through their
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`undersigned counsel, hereby further respond and object to Interrogatory Nos. 7 and 13 (the
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`“Interrogatories”) of plaintiff Network-1 Technologies,
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`Inc. (“Network-1” or “Plaintiff”).
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`Defendants expressly reserve the right to amend and/or supplement their responses pursuant to
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`Fed. R. Civ. P. 26(e).
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`GENERAL RESPONSES & OBJECTIONS
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`Defendants incorporate by reference all general and specific responses and objections
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`previously made in Defendants’ original Responses and Objections to Plaintiff’s First, Second,
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`Third, and Fourth Sets of Interrogatories.
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`SPECIFIC RESPONSES & OBJECTIONS
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`Each of the General Responses and Objections are incorporated by reference into each
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`and every specific response set forth below. Notwithstanding the specific response to any
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`Interrogatory, Defendants do not waive any of their General Responses or Objections. Subject to
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`Case 1:14-cv-02396-PGG-SN Document 249-1 Filed 04/07/21 Page 3 of 7
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`CONFIDENTIAL—OUTSIDE COUNSEL ONLY
`SUBJECT TO PROTECTIVE ORDER
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`the General Responses and Objections, and without waiver, modification or limitation thereof,
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`Defendants’ supplemental responses and objections to the Interrogatories are set forth below.
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`INTERROGATORY NO. 7:
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`For each Accused Instrumentality, identify each and every basis for your claim that you
`have not
`infringed and do not
`infringe the claims of the Asserted Patents,
`including an
`identification of the claim elements that you contend that you do not practice, identification of all
`facts and documents that support or contradict your claim, and identification of all persons with
`knowledge of the same.
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`SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 7:
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`Defendants incorporate by reference each of their general objections above. Subject to
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`the foregoing, Defendants supplement their prior responses to this Interrogatory as follows:
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`Defendants further respond that the Accused Instrumentalities do not infringe the asserted
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`claims of any of the Patents-in-Suit because not all claimed steps take place within the United
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`States.
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`Specifically, any “non-exhaustive search identifying a neighbor” (’988 patent),
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`“sublinear approximate nearest neighbor search of reference extracted features of reference
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`identified media works” (’237 patent), or “non-exhaustive, near neighbor search” to “correlate”
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`media works and identifiers (’464 patent), to the extent such searches are performed at all by the
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`Accused Instrumentalities, are conducted outside the United States.
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`INTERROGATORY NO. 13:
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`To the extent that you contend that there exist commercially acceptable and available
`non-infringing alternatives to the Accused Instrumentalities with respect to the patents-in-suit,
`identify with particularity such non-infringing alternatives, the dates on which such alternatives
`were available, the cost of implementation for each, and the effect of implementation for each,
`including any studies, tests or analyses of these costs and effects.
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`SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13:
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`Defendants incorporate by reference each of their general objections above. Subject to
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`the foregoing, Defendants supplement their prior responses to this Interrogatory as follows:
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`2
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`Case 1:14-cv-02396-PGG-SN Document 249-1 Filed 04/07/21 Page 4 of 7
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`CONFIDENTIAL—OUTSIDE COUNSEL ONLY
`SUBJECT TO PROTECTIVE ORDER
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`Defendants further respond that as described in Defendants’ third supplemental response
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`to Interrogatory No. 13, one available non-infringing alternative is geographically locating the
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`servers running the Accused Instrumentalities, or a portion of the Accused Instrumentalities,
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`outside of
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`the United States.
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`Defendants reiterate their contention that
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`the Accused
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`Instrumentalities do not infringe any of the claims of the patents-in-suit. By providing further
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`detail regarding this non-infringing alternative, Defendants do not concede that the Accused
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`Instrumentalities are distinct from or equivalent to any particular alternative.
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`As explained in the prior testimony of Defendants’ fact and expert witnesses, no version
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`of the Content ID system infringes any patents owned by Network-1. Defendants’ witnesses
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`further explained that, nonetheless, it would be relatively inexpensive and easy to relocate the
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`accused Content ID Match System outside of the United States. Defendants have recently
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`acquired additional evidence consistent with this testimony. Specifically, Defendants have
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`relocated the production instances of the Content ID Match System portion of the Accused
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`Instrumentalities that had previously been located within the United States to servers exclusively
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`outside of the United States, primarily in Europe. This non-infringing alternative has been
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`available since at least September 2011, when Defendants had already set up at least one instance
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`of the Content ID Match System in Europe.
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`For at least the time period between September 2011 and November 2020, production
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`instances of the Content ID Match System were located in both the United States and in Europe.
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`Beginning in November 2020, Defendants began relocating the U.S. instances of the Match
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`System to servers outside the United States. The relocation was complete by no later than
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`January 28, 2021, confirming the prior testimony of Defendants’ witnesses, who explained that
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`such a relocation would be relatively simple as a technical matter, would not take long, would be
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`3
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`Case 1:14-cv-02396-PGG-SN Document 249-1 Filed 04/07/21 Page 5 of 7
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`CONFIDENTIAL—OUTSIDE COUNSEL ONLY
`SUBJECT TO PROTECTIVE ORDER
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`relatively inexpensive, and would have no adverse effect on the functioning of the Content ID
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`Match System, thus demonstrating the limited value of the Patents-in-Suit, even if they were
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`valid and infringed (and they are not).
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`Defendants relocated to outside the United States all instances of the Partner Reference
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`index, the UGC index, and indices used to detect abusive and child safety content utilized by the
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`Match System that had been inside the United States. Accordingly, at the current time, for all
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`content uploaded by users of YouTube that is analyzed by Content ID, embeddings are sent to
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`Match System servers in Europe, which determine whether a given uploaded video reuses
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`content owned by a YouTube Partner. Any resulting “match” is then sent on to the claiming
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`system, which is located on other servers.
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`Defendants utilized current salaried employees and did not hire any additional personnel
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`or pay overtime for the project. YouTube Resource Management personnel spent 18 hours
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`assessing and locating server capacity in data centers outside the United States and analyzing the
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`relocation. Engineers on the Content ID team spent 192 hours analyzing, coordinating, and
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`executing the relocation. These individuals performed these tasks within the scope of their job
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`responsibilities and as part of their normal workload.
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`In terms of machine costs, Defendants utilized existing machine capacity and did not
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`purchase any additional hardware to implement the relocation. The engineer team executing the
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`relocation accounted for incremental machine costs that were allocated to YouTube due to
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`increased capacity utilization while each particular machine database at issue was being moved,
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`due to the need to hold capacity in multiple locations while data was being transferred. After the
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`relocation of a particular machine database was complete, the capacity that had previously been
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`used to host that machine database in the United States was released for utilization by others
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`4
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`Case 1:14-cv-02396-PGG-SN Document 249-1 Filed 04/07/21 Page 6 of 7
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`CONFIDENTIAL—OUTSIDE COUNSEL ONLY
`SUBJECT TO PROTECTIVE ORDER
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`within YouTube or Google. The incremental one-time machine resource cost was accounted for
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`. This is
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`approximately equivalent to $650,000. Again, no additional machine capacity or hardware was
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`purchased to complete this relocation.
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`Machine resource costs on a going-forward basis did not increase as a result of the
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`relocation. At the same time as the relocation, but independent of and not necessary to it,
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`Defendants took the opportunity to re-provision the resource allocation of one of its machine
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`databases, which marginally increased machine resource costs for that database going forward.
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`This cost was independent of the relocation and would have been needed even if the Match
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`System were not relocated.
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`Defendants incurred one-time incremental data transmission costs of under
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`(which is approximately $11,500) to relocate the U.S. instances of the Match System to Europe.
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`After the relocation was completed, data transmission costs were reduced, because YouTube now
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`performs all match jobs within the same “metro” (roughly, metropolitan area) as the index on
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`which the Match System calls.
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`The relocation of the production instances of the Match System previously located within
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`the United States to locations outside the United States has not had any negative effect on the
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`performance of the Content ID system,
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`including the Match System, and has caused no
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`perceivable difference in the user experience for YouTube users or Content ID partners.
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`Defendants did not conduct any formal studies or analyses in determining to relocate
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`outside the United States the production instances of the Match System previously residing in the
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`United States. As with any software change, Defendants conducted tests in the normal course of
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`business to ensure that the relocated instances of the Match System were functional.
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`5
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`Case 1:14-cv-02396-PGG-SN Document 249-1 Filed 04/07/21 Page 7 of 7
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`CONFIDENTIAL—OUTSIDE COUNSEL ONLY
`SUBJECT TO PROTECTIVE ORDER
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`In accordance with Federal Rule of Civil Procedure 33(d), further information responsive
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`to this Interrogatory is available in Defendants’ forthcoming document production(s).
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`Dated: February 19, 2021
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`/s/ Kevin Hardy
`Thomas H. L. Selby (pro hac vice)
`Samuel Bryant Davidoff
`Andrew V. Trask
`Melissa Collins (pro hac vice)
`Graham W. Safty (pro hac vice)
`Sumeet P. Dang (pro hac vice)
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street, NW
`Washington, DC 20005
`Phone: (202) 434-5000
`Fax: (202) 434-5029
`tselby@wc.com
`sdavidoff@wc.com
`atrask@wc.com
`mcollins@wc.com
`gsafty@wc.com
`sdang@wc.com
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`For Matters in New York:
`WILLIAMS & CONNOLLY LLP
`650 Fifth Avenue, Suite 1500
`New York, NY 10022
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`Kevin Hardy (pro hac vice)
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`1300 I Street, NW, Suite 900
`Washington, DC 20005
`Phone: (202) 538-8000
`Fax: (202) 538-8100
`kevinhardy@quinnemanuel.com
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`Attorneys for Google LLC and
`YouTube, LLC
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`6
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