`Case 1:14-cv-02396-PGG-SN Document 269-3 Filed 09/07/22 Page 1 of 8
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`EXHIBIT C
`EXHIBIT C
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`Case 1:14-cv-02396-PGG-SN Document 269-3 Filed 09/07/22 Page 2 of 8
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Plaintiff,
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`NETWORK‐1 TECHNOLOGIES, INC.,
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`vs.
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`GOOGLE LLC AND YOUTUBE, LLC,
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`Defendants.
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`Case No. 1:14‐CV‐02396‐PGG‐SN
`Case No. 1:14‐CV‐09558‐PGG‐SN
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`Expert Rebuttal Report of Dr. Gregory K. Leonard
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`Confidential Outside Counsel Only
`Prosecution/Acquisition Bar Materials
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` rightsholders, and maintained a reference database with over
`representing
` active reference files.160
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`C.
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`Google’s Maximum Willingness to Pay
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`74.
`The economic analysis of a hypothetical negotiation involves determining the
`maximum royalty that Google would have been willing to pay for the right to use the Patents‐
`in‐Suit. This maximum royalty is driven by the difference between the expected profitability at
`the time of the hypothetical negotiation from using the patented technology (assuming Google
`takes a license to the Patents‐in‐Suit) and the expected profitability that could be achieved by
`using a non‐infringing alternative. In other words, Google would be unwilling to pay more for
`the right to utilize the Patents‐in‐Suit than the incremental profit that it would expect to lose if
`it was forced to develop and switch to a non‐infringing system. Google’s relative bargaining
`position is therefore determined by its next‐best, non‐infringing alternative. If Google had an
`acceptable and effective non‐infringing alternative, then its relative bargaining position would
`have been strong, and it would not have been willing to pay more than the full economic cost
`of avoiding infringement of the Patents‐in‐Suit by implementing this non‐infringing alternative.
`Conversely, Network‐1 and/or Dr. Cox would have accepted a lower royalty recognizing that
`their relative bargaining position was weak due to the available non‐infringing alternatives.
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`1. Next‐Best, Non‐Infringing Alternative: Moving the Match System to Data
`Centers Outside of the United States
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`a. Google’s Video Platform and Content ID Operate Globally
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`75.
`I now consider more specifically one of the non‐infringing alternatives that
`Google could have implemented at the time of the hypothetical negotiations: moving the
`Match System component of Content ID to data centers outside of the U.S. Before discussing
`the specifics of implementing this alternative, it is important to note that Google’s YouTube
`operations span the globe, with a multitude of actions already taking place across various
`countries and regions: users may generate their content in one country, upload their content
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`160 "YouTube Content ID," YouTube, February 3, 2017 (GOOG‐NETWORK‐00766943 at 951).
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`to a server in their home country or another country, after which that content may be
`distributed and viewed by users across the globe, generating ad revenues from dozens of
`countries.
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`76.
`The Content ID system relies, and has relied since the time of the hypothetical
`negotiation, upon a global infrastructure. For example:
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` Users from around the world upload videos to the YouTube platform.161
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` Uploaded videos are processed and transcoded in a number of Google’s data
`centers around the world.162
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` Once a video is transcoded,
`163
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`the U.S. and Europe that house the Match System.164
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`.165
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` data centers in
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`161 “From PewDiePie to Shane Dawson, these are the 26 most popular YouTube stars in the world,” Business
`Insider, February 7, 2020, https://www.businessinsider.com/most‐popular‐youtubers‐with‐most‐subscribers‐
`2018‐2#17‐rezendeevil‐261‐million‐subscribers‐10.
`Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
`162
`163 Konrad Deposition, pp. 52:14‐53:2. (“Q. Okay. And when a – so, can you help me understand how, for a given
`upload, the work of the match system might be divided across data centers? Or is it all processed by a single
`data center for one upload? A. For the – so, the matching is a – is – has many stages.
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` So, in that way, yes, it can be spanning two data centers.”);
`Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
`164 Erb Deposition, p. 148:8‐22. (“Q. And has that data – well, has the location where the MatchSystem servers
`or the match server runs, has that changed over time at all? A. Yes, we’ve migrated from data center to data
`center, but it’s changed in detail. Q. Has it generally been consistent with what you described,
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`Q. And that’s been true for the time that you’ve been working on the
`ContentID system. A. Yes.”); Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
`Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`165
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` Content owners determine what happens with a claimed video.
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` Claimed videos are watched by YouTube viewers across the globe. Advertising
`revenue is generated by viewers spanning dozens of countries.166
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`77.
`This context is relevant for evaluating potential non‐infringing alternatives to the
`Patents‐in‐Suit.
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`b. Steps for Moving the Match System to Data Centers Outside of the U.S.
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`78.
`As discussed above, as relevant here, the Content ID system involves three
`general steps: fingerprinting, matching, and claiming. I understand that, because the Patents‐
`in‐Suit each contain method claims, not system claims, infringement would occur only when all
`steps in the claimed methods occur in the United States. I understand that, throughout the
`relevant time period, the relevant steps have occurred in different geographies—videos
`uploaded by users are processed,
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`Google’s data centers around the world, whereas the Match System has been hosted only in
`data centers in the United States and in Europe.167
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` and those servers are not necessarily located in the same data
`centers as the Match System.168 At no point during the relevant time period has there been any
`technical or other requirement that the three stages need to occur in the same location (or in
`the United States) and, indeed, they often do not. 169
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`79.
`Thus, at the time of the hypothetical negotiation, one non‐infringing alternative
`available to Google was to move one of the steps of the claimed methods outside of the U.S.
`Given the international nature of Google operations discussed above, such an alternative would
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`166 “YouTube monetized markets,” YouTube Help,
`https://support.google.com/youtube/answer/1342206?hl=en&ref_topic
`=9257990. See also, “Which Countries Watch the Most YouTube,” WorldAtlas,
`https://www.worldatlas.com/articles/which‐countries‐watch‐the‐most‐youtube.html.
`Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
`167
`Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
`168
`169 See “Response to Interrogatory No. 22,” Defendants' Responses and Objections to Plaintiff's Fourth Set of
`Interrogatories (Nos. 22‐25), pp. 2‐3; see also Bhattacharjee Report, Part XVI.
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`have been readily available to YouTube—and it would have been an attractive alternative if
`faced with a high royalty demand from the patent owner.
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`80. Mr. Konrad testified that moving the U.S. instances of the Match System abroad
`(the other instances are in Europe, as noted) would involve (1) establishing that there are
`sufficient resources in data centers abroad to host the Content ID Match System, and (2)
`configuring the new data centers.170 He testified that the latter step would require
`.171 At the point of the hypothetical
`negotiation, potentially as early as September 2011, Google had, at a minimum, already set up
`the Content ID’s Match System in at least one data center in Europe. David Erb testified that
`the Match System was only run in the U.S. and in Europe and this had been historically true for
`the time that Mr. Erb had been working on the Content ID system, i.e., since August 2011.172
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`81.
`I have discussed this potential non‐infringing alternative with Matthias Konrad
`(lead engineer for Content ID), Oleg Ryjkov (an engineer on Mr. Konrad’s team), and Christine
`Moor (lead of YouTube Resource Management), and as an economic matter, the lowest‐cost
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`170 Konrad Deposition, p. 66:7‐18. (“Q. What does it take to set up a data center to run ContentID? MR. HARDY:
`Objection; vague. THE WITNESS: Yeah, so, the expert on those questions would, again, be Oleg. We first
`need to make sure we have the necessary resources to run the indices in that data center, the required
`amount of compute power, disk and RAM footprint that need to be there. Once that's given, and that's
`internally tracked correctly, it's
`.”)
`171 Konrad Deposition, pp. 71:6‐72:2. (“Q. So, what would be the cost associated with making that switch? A. So,
`I'm a bit like – the thing that I cannot assess is general resource cost in data centers outside of US versus
`inside of US. So if there's a difference in how data centers operation prices are, that might, of course, factor
`into that. I would be surprised if that was too big. There's going to be a bit of cost of people that have to do a
`bit of planning. I couldn't assess a dollar number, but it might
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`Q. And how did you arrive at that figure? A. That is based on conversations we had
`with Oleg yesterday and the main question was is it – is where a – where a match system or an indices is run,
`is it
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`”)
`172 Erb Deposition, pp. 145:23‐146:4. (“A. I understand. We operate match servers in Europe and the United
`States. Q. And is there any difference between the match servers that are operated in Europe versus the
`United States? A. No.”) Erb Deposition, p. 148:14‐22. (“Q. Has it generally been consistent with what you
`described,
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` Q. And that's been true for the time that
`you've been working on the ContentID system? A. Yes.”) Erb Deposition, pp. 12:20‐13:2. (“Q. And after you
`transitioned out of – it sounded like the cloud computing projects in August of 2011, what was the next
`project or area of focus that you had? A. I moved to the YouTube product area to work as an individual
`contributor on the Content ID claiming team.”)
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`non‐infringing alternative would have been to move the U.S. instances of the Content ID Match
`System to a location outside of the U.S.
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`82.
`In particular, I understand that doing so would have involved (i) identifying
`resource availability in data centers outside the U.S., which would be established by Google’s
`resource planners;173 and (ii) then configuring the data centers outside of the U.S.174
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`83.
`I understand that implementing such a non‐infringing alternative would have
`been possible at the time of the hypothetical negotiation dates, either in 2011, 2012, or 2014.
`For example, I understand that Google had two data centers outside the U.S. in 2011 in Belgium
`and Finland.175 I further understand that
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`173 Konrad Deposition, pp. 66:7‐18 and 68:15‐69:3. (“Q. What does it take to set up a data center to run
`ContentID? A. Yeah, so, the expert on those questions would, again, be Oleg. We first need to make sure we
`have the necessary resources to run the indices in that data center, the required amount of compute power,
`disk and RAM footprint that need to be there. Once that’s given, and that’s internally tracked correctly, it’s
`
`”); (“Q. Do you have any understanding of
`what would be required to, for example, not have any in the US? A. I believe that would be – the first thing
`that we would be doing is we would contact the resource planners, Christine Moor’s team, to make sure we
`have enough provisioning in other data centers. I guess there would be other teams that could be locating
`their services out of non‐US data centers into US data centers and we could get those resources there and,
`once we would have that, it would be
` to bring it up in non‐US
`data centers, yes.”)
`174 Erb Deposition, pp. 260:12‐23; Konrad Deposition, pp. 70:9‐71:13. (“Q. And would implementing a system
`where all the servers running the ContentID system were outside the U.S. also limit the redundancy available
`for load balancing? A. No. Q. Why not? A. Because we have multiple data centers in Europe and Asia. Q. And
`why aren’t you using those multiple data centers for running the ContentID system now? A. Because we have
`no reason to.”); (“Q. You mentioned that it would require adjustment or re‐provisioning of some services to
`different data centers. What other services would have to move to make that accommodation? A. So the – I
`mean, this would be one solution how – like, if you look at, like, what our resources use in compared to
`YouTube’s total resource usage or Google’s total resource usage, it’s a very, very small fraction. So, I would
`believe that, even without moving any services, we could – we could operate all of ContentID, I’m sure we
`could operate all of ContentID with today’s resources outside of the US. In general, the more flexibility you
`have, the higher utilization can be for these kinds of systems. So, whenever a service can run everywhere,
`there is some advantages in overall utilization. But whether you can run it everywhere outside of the United
`States or everywhere doesn’t really matter in overall utilization. So, I don’t believe, for example, that it would
`increase resource cost for us to do so. Q. So, what would be the cost associated with making that switch? A.
`So, I’m a bit like – the thing that I cannot assess is general resource cost in data centers outside of US versus
`inside of US. So if there’s a difference in how data centers operation prices are, that might, of course, factor
`into that.”)
`175 “St. Ghislain, Belgium,” Google Data Centers, https://www.google.com/about/datacenters/locations/st‐
`ghislain/; “Hamina, Finland,” Google Data Centers, https://www.google.com/about/datacenters/
`locations/hamina/.
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`the U.S. to Europe would require a relatively negligible incremental amount of network
`bandwidth when considered in the context of Google’s overall data transmission. For example,
`today, even if all
` in U.S.‐based data centers
`(and they are not), it would require approximately
` of network bandwidth to transmit
`them to Europe for matching.176
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`84.
`Thus, at the time of the hypothetical negotiation, Google would have been able
`to credibly threaten to walk away from the bargaining table: if Dr. Cox or Network‐1 demanded
`a royalty that exceeded the cost of moving the Match System outside of the U.S., Google could
`have turned to this non‐infringing alternative, thereby avoiding infringement. In this way, the
`incremental cost of moving the Match System outside of the U.S. is a conservative measure of
`the upper bound on a reasonable royalty.177
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`c. Calculation of Google’s Maximum Willingness to Pay
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`85.
`Google’s maximum willingness to pay is determined by the difference between
`the cost of implementing the non‐infringing alternative and what Google actually spent on
`Content ID—i.e., any resources Google spent on developing Content ID in the U.S. could have
`been redirected to those tasks outside of the U.S.
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`Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020; Bhattacharjee Report ¶¶ 469‐472.
`176
`177 Put differently, had Google been able to switch earlier, then there would have likely been no incremental
`cost, since any resources spent on configuring the system in the U.S. would have been spent on implementing
`the system in another country.
`As noted by the Federal Trade Commission:
`At the time a manufacturer faces an infringement allegation, switching to an alternative
`technology may be very expensive if it has sunk costs in production using the patented
`technology. That may be true even if choosing the alternative earlier would have entailed little
`additional cost. If so, the patentee can use the threat of an injunction to obtain royalties covering
`not only the market value of the patented invention, but also a portion of the costs that the
`infringer would incur if it were enjoined and had to switch. This higher royalty based on switching
`costs is called the “hold‐up” value of the patent. Patent hold‐up can overcompensate patentees,
`raise prices to consumers who lose the benefits of competition among technologies, and deter
`innovation by manufacturers facing the risk of hold‐up.
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`(Federal Trade Commission, The Evolving IP Marketplace: Aligning Patent Notice and Remedies
`with Competition, March 2011, p. 5.)
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