Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 1 of 12 PageID #: 32406
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`Civil Action No.
`2:19-cv-00395-JRG
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`
`
`
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`
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`Bright Data Ltd.,
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` Plaintiff,
`
` v.
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`Teso LT, UAB, Oxysales, UAB, and
`Metacluster LT, UAB,
`
` Defendants.
`
`
`
`JOINT MOTION FOR ENTRY OF
`POST-VERDICT SCHEDULING ORDER
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`Plaintiff Bright Data Ltd. (“Plaintiff”) and Defendants Teso LT, UAB, Oxysales, UAB,
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`and Metacluster LT, UAB (collectively, “Defendants”) hereby move the Court for entry of a pro-
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`posed post-verdict Scheduling Order.
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`I.
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`INTRODUCTION
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`Pursuant to the Court’s September 21, 2022 Order (ECF No. 601), the parties met and
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`conferred regarding the post-verdict schedule and jointly submit this motion for a proposed post-
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`verdict scheduling order.
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`1
`
`Data Co Exhibit 1105
`Data Co v. Bright Data
`IPR2022-00135
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`

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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 2 of 12 PageID #: 32407
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`Date Provided
`by the Court
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`Plaintiff’s
`Proposed Date
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`Defendants’ Pro-
`posed Date
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`Event
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`N/A; if the Court enter-
`tains the motion, 30
`days for response, 14
`days for reply and 14
`days for sur-reply
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`Bright Data files Motion
`for Compensation for On-
`going Infringement
`
`N/A (Defendants re-
`spectfully suggest that
`the Court deny this
`motion)
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`28 days after any entry
`of Judgment as pro-
`vided for in Federal
`Rules. See Fed. R. Civ.
`P 50(b); Fed. R. Civ. P.
`59(b).
`
`N/A; the Court will en-
`ter any judgment on
`the Court’s own sched-
`ule, not Bright Data’s
`schedule
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`Subject to Court Ruling on
`Pending Motion for Post-
`Verdict Discovery (ECF
`No. 607), Defendants pro-
`duce updated financials
`
`Parties file Rule 50(b) and
`59 Motion for New Trial,
`with responses, replies and
`surreplies due according to
`Local Rules
`
`Entry of Judgment
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`Defendants file Response
`to Motion for Updated Fi-
`nancials (ECF No. 607)
`
`Defendants file Response
`to Bright Data’s Motion for
`Enhanced Damages and
`Exceptional Case (ECF No.
`541), with replies and sur-
`replies due according to
`Local Rules
`
`TBD
`
`TBD
`
`14 Days After Ser-
`vice of Requested
`Financials per Dis-
`covery Motion (ECF
`607), including ex-
`pert
`declaration,
`with response, re-
`plies, and surreplies
`due according to Lo-
`cal Rules
`
`14 Days after Court
`Order
`addressing
`Bright Data Post-
`Verdict Discovery
`Motion (ECF 607)
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`TBD
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`October 21, 2022
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`TBD
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`October 19, 2022
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`TBD
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`October 10, 2022
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`October 10, 2022
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`September 28,
`2022
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`Already set by Court Already set by Court
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`2
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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 3 of 12 PageID #: 32408
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`TBD
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`
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`N/A; there is no ba-
`sis
`for any such
`deadline limiting the
`potential
`enforce-
`ment of any judg-
`ment
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`30 days after the final
`disposition of all post-
`trial motions in this
`Court
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`Any potential enforcement
`of any judgment
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`II.
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`THE PARTIES’ POSITIONS ON DISPUTED ISSUES
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`The parties’ positions regarding their proposals on disputed issues are set forth as follows:
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`A. Bright Data’s Position:
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`Bright Data requests an expedited schedule to bring this action to a judgment, and if nec-
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`essary, any appeal. Within days of the November 5, 2021 jury verdict, Defendants announced on
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`their website that “Oxylabs is legally entitled to continue providing the accused services” and
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`“Oxylabs continues to offer its services in an uninterrupted manner.” ECF 541-26 at 5 (https://ox-
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`ylabs.io/legal-timeline). Despite openly continuing their willful infringement, Defendants have
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`refused to produce updated and supplemental financials to allow Bright Data to calculate compen-
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`sation for Defendants’ ongoing infringement, including supplemental damages following the jury
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`verdict. By forcing Bright Data to file a motion to compel narrowly tailored post-verdict discovery
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`(ECF 607), Defendants seek to further hinder and delay the filing of Bright Data’s anticipated
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`motion for compensation for ongoing infringement in the hopes of further delaying the entry of
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`judgment and any subsequent appeal.
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`Disregarding the jury verdict that found willful infringement and awarded Bright Data its
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`lost profits, Defendants have taken the position that they can freely infringe Bright Data’s patents
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`without any compensation for their ongoing infringement. Such position is meritless. 35 U.S.C.
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`§ 284 provides that “upon finding for the claimant the court shall award the claimant damages
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`adequate to compensate for the infringement, but in no event less than a reasonable royalty for the
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`3
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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 4 of 12 PageID #: 32409
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`use made by the infringer…” and “[w]hen the damages are not found by a jury, the court shall
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`assess them.”
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`As briefed in Bright Data’s motion for discovery (ECF 607) and Defendants are already
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`aware, Promega and Whitserve are inapposite. That case was about past damages – not compen-
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`sation for post-trial ongoing infringement. Promega Corp. v. Life Techs. Corp, 875 F.3d 651, *666
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`(Fed. Cir. 2017). The Federal Circuit held that Promega was not entitled to any past damages,
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`because Promega expressly waived any reasonable royalty and “there was no evidence to support
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`a lost profits damages calculation under the narrow damages theory Promega crafted over the
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`course of litigation.” Id. at *664; see also 660 and 662. In contrast, Bright Data is seeking com-
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`pensation for Defendants’ continuing post-trial infringement, which is equitable relief not subject
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`to a jury trial. Similarly, Defendants imply that the Federal Circuit case of Whitserve, LLC v.
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`Computer Packages, Inc. supports waiver of an ongoing royalty, but this is not true. As explained
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`in Erfindergemeinschaft, the Federal Circuit in Whitserve “held that the district court abused its
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`discretion by denying the request for prospective relief (i.e., an injunction or an ongoing royalty),
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`and forcing the plaintiff to ‘resort to serial litigation’ to obtain compensation for the post-verdict
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`period.” Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co., No. 2:15-CV-1202-WCB, 2017
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`U.S. Dist. LEXIS 111425, at *8 (E.D. Tex. July 18, 2017). Any delay in calculating compensation
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`for Defendants’ ongoing infringement has been caused solely by Defendants’ own obstruction and
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`refusal to produce updated financials (documents which it previously produced in discovery). De-
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`fendants have no basis for asking the Court to allow Defendants to continue their infringement
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`indefinitely without compensation to Bright Data.
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`4
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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 5 of 12 PageID #: 32410
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`As addressed in the August 31, 2022 Joint Status Report (ECF 594), Defendants have no
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`basis to further delay briefing. The jury reached a verdict eleven months ago.1 Instead of focusing
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`on settlement, Defendants have used the subsequent eleven months to (1) file 9 IPR/PGR petitions
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`against Bright Data patents, including 4 against the ’319 and ’510 Patents found not invalid in the
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`November 5, 2021 jury verdict, and (2) file a new patent infringement complaint against Bright
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`Data entitled Metacluster LT, UAB v. Bright Data Ltd., Case No. 2:22-cv-11.2 Defendants have
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`had eleven months to prepare their much anticipated and much touted JMOL and new trial mo-
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`tions, but request that they not be due until 28 days after entry of Judgment. Defendants do not
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`need to wait for entry of the judgment to file their Rule 50(b) and 59 Motions and have had almost
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`a year to prepare.
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`Accordingly, Bright Data respectfully requests expedited resolution of Bright Data’s pend-
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`ing discovery motion (ECF No. 607) and entry of judgment in this matter along with the other
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`deadlines proposed above. With regard Defendants’ request that any potential enforcement of the
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`judgment be filed within 30 days of final resolution, Bright Data is aware of no basis for such a
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`requirement. Defendants cannot dictate how long a Court’s judgment may be enforced and such
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`request should be denied.
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`B. Defendants’ Position:
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`
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`1 Defendants originally moved for the stay on December 1, 2021 arguing that “Bright Data
`will not suffer any prejudice by a brief stay of several weeks, as the mediation will occur early in
`the New Year and briefing can continue on Bright Data’s motions in the New Year if the mediation
`is not successful.” Teso Action, ECF No. 534 at 2.
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`2 Oxylabs widely publicized its new complaint including through a press release and its own
`webpage
`touting
`its
`litigation against Bright Data. See, e.g., https://markets.busi-
`nessinsider.com/news/stocks/oxylabs-sues-bright-data-in-patent-infringement-case-1031088447,
`https://www.yahoo.com/now/oxylabs-sues-bright-data-patent-144400197.html and https://ox-
`ylabs.io/legal-timeline.
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`5
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`

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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 6 of 12 PageID #: 32411
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`(cid:120) “Motion for Compensation for Ongoing Infringement”: The Court should not allow
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`Bright Data to file such motion. Defendants will set forth their position in more detail
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`in Defendants’ Response to Bright Data’s “Motion for Updated Financials,” which De-
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`fendants will file on October 10, 2022. Among other things, BD waived its right to seek
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`such “compensation” by failing to present a reasonable-royalty damages theory at trial
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`and having JMOL granted against it (without any opposition from BD) by the Court on
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`reasonable-royalty damages (Trial Tr. Vol. 4, 287:18-288:5). See, e.g., Promega Corp.
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`v. Life Techs. Corp., 875 F.3d 651, 660, 662, 663, 665, 666 (Fed. Cir. 2017) (finding
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`waiver of reasonable-royalty damages where plaintiff only sought damages in the form
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`of lost profits—“a district court does not abuse its discretion by declining to give that
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`plaintiff multiple chances to correct deficiencies in its arguments or the record”; “a
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`patent owner may waive its right to a damages award when it deliberately abandons
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`valid theories of recovery . . .”). The Court should not be burdened with Bright Data’s
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`attempt to redo its unreliable reasonable-royalty theory for the third time. Additionally,
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`the Court need not award any such compensation under relevant case law and, further,
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`the Court need not take this issue up now pending rulings on Defendants’ JMOL/new
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`trial motions or any appeal (or severance) of the case. See, e.g., Whitserve, LLC v.
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`Computer Packages, Inc., 694 F.3d 10, 35 (Fed. Cir. 2012) (noting that, with respect
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`to “ongoing infringement,” the court “can exercise its discretion to conclude that no
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`forward-looking relief is appropriate in the circumstances”); Cave Consulting Group,
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`LLC v. Optuminsight, Inc., 11-CV-00469, 2016 WL 4658979, at *24 (N.D. Cal. Sept.
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`7, 2016) (“Given the number and complexity of the issues in this case that remain un-
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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 7 of 12 PageID #: 32412
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`resolved, the Court finds that it would be appropriate to delay the consideration of ev-
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`idence and calculating the ongoing royalty rate until after the completion of the appeals
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`in this case.”); Golden Hour Data Sys., Inc. v. emsCharts, Inc., 06-CV-381, 2014 WL
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`8708239, at *14 (E.D. Tex. Mar. 31, 2014) (“While the Court recognizes the efficiency
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`of determining post-verdict damages in the originally-filed case, without the showing
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`of an appropriate royalty base supported by competent evidence, any damages award
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`would be speculative. As such, the Court deems it proper and prudent to sever the de-
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`termination of the royalty base for post-verdict damages into a new cause to facilitate
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`the entry of judgment in this case.”) (Gilstrap, C.J.). But, if the Court allows Bright
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`Data to file this motion, it should allow 30 days for Defendants to respond to the motion
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`(as Bright Data will presumably have disclosed a brand-new reasonable royalty theory
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`from its expert Dr. Becker, which Defendants will need time to analyze and rebut with
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`their own expert (it is also unclear whether the Court would allow expert depositions)),
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`with 14 days for the parties to file replies and surreplies.
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`(cid:120) “Defendants produce updated financials”: As will be explained in Defendants’ Re-
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`sponse to Bright Data’s “Motion for Updated Financials,” which will be filed on Octo-
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`ber 10, 2022, the Court should not require Defendants to produce “updated financials.”
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`(cid:120) “Entry of Judgment”: Bright Data seeks to require the Court to enter judgment on
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`October 19, 2022. Defendants defer to the Court on this issue—i.e., Defendants’ posi-
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`tion is that the Court enters judgment if and when it believes judgment is appropriate.
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`For example, the Court may wish to resolve Bright Data’s pending Motion for En-
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`hanced Damages and Exceptional Case (ECF No. 541) prior to entering any judgment.
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`That motion will not be fully briefed until October 12, 2022 (see ECF No. 601, Order
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`7
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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 8 of 12 PageID #: 32413
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`Lifting Stay (setting briefing schedule on motion)). Further, Defendants respectfully
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`request that the Court stay any potential enforcement of any judgment until thirty days
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`after the final disposition of all post-trial motions in this Court. See L.R. 62(a) (allowing
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`Court to stay execution of judgment).
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`(cid:120) “Rule 50(b) and 59 Motion for New Trial”: Bright Data proposes that these motions
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`be due two days after the Court enters judgment under Bright Data’s proposal (i.e.,
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`Bright Data proposes that the Court enter judgment on October 19, 2022 and that Rule
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`50(b)/Rule 59 motions be due on October 21, 2022). Two days for such motions is
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`unreasonable. Instead, Defendants respectfully submit that the briefing on Rule
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`50(b)/Rule 59 motions follow the briefing schedule set forth in the Federal Rules—i.e.,
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`that these motions be due 28 days after entry of any Judgment. See Fed. R. Civ. P 50(b);
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`Fed. R. Civ. P. 59(b).3
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`3 BD suggests that Defendants did not “focus[] on settlement[.]” See p. 3-4. This suggestion
`is meritless. Defendants have previously detailed their settlement efforts and offered to submit
`their own and the parties’ settlement communications and offers to the Court on the Court’s request
`or if BD consents. ECF No. 594; Metacluster v. Bright Data, Case 2:22-cv-00011-JRG-RSP (E.D.
`Tex.), ECF No. 49 at 12-13. BD refuses to consent, which speaks volumes about the lack of merit
`of its allegation. Metacluster, ECF No. 57 at 5 n.7.
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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 9 of 12 PageID #: 32414
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`
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`Dated: October 5, 2022
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`
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`Respectfully submitted,
`
`
`
`/s/ Ronald Wielkopolski
`J. MARK MANN
` Texas State Bar No. 12926150
` mark@themannfirm.com
`G. BLAKE THOMPSON
` Texas State Bar No. 24042033
` blake@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Telephone: (903) 657-8540
`Telecopier: (903) 657-6003
`
`KORULA T. CHERIAN
` sunnyc@cherianllp.com
`ROBERT HARKINS
` bobh@cherianllp.com
`CHERIAN LLP
`1936 University Avenue, Suite 350
`Berkeley, California 94702
`Telephone: (510) 944-0192
`
`THOMAS DUNHAM
` tomd@cherianllp.com
`RONALD WIELKOPOLSKI
` ronw@cherianllp.com
`CHERIAN LLP
`1901 L Street, NW, Suite 700
`Washington, DC 20036
`Telephone: (202) 838-1560
`
`S. CALVIN CAPSHAW
` Texas State Bar No. 03783900
` ccapshaw@capshawlaw.com
`ELIZABETH L. DERIEUX
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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 10 of 12 PageID #: 32415
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` Texas State Bar No. 05770585
` ederieux@capshawlaw.com
`CAPSHAW DERIEUX, LLP
`114 E. Commerce Avenue
`Gladewater, Texas 75647
`Telephone: (903) 845-5770
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`Counsel for Bright Data Ltd.
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`10
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`

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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 11 of 12 PageID #: 32416
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`Dated: October 5, 2022
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`
`BRETT C. GOVETT
` Texas State Bar No. 08235900
` brett.govett@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`2200 Ross Avenue, Suite 3600
`Dallas, Texas 75201
`Telephone: (214) 855-8000
`Telecopier: (214) 855-8200
`
`DANIEL S. LEVENTHAL
` Texas State Bar No. 24050923
` daniel.leventhal@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`1301 McKinney, Suite 5100
`Houston, Texas 77010-3095
`Telephone: (713) 651-5151
`Telecopier: (713) 651-5246
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`
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`Respectfully submitted,
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`/s/ Steven Callahan .
`MICHAEL C. SMITH
` Texas State Bar No. 18650410
` michael.smith@solidcounsel.com
`SCHEEF & STONE, LLP
`113 East Austin Street
`Marshall, Texas 75670
`Telephone: (903) 938-8900
`Telecopier: (972) 767-4620
`
`STEVEN CALLAHAN
` Texas State Bar No. 24053122
` scallahan@ccrglaw.com
`CRAIG TOLLIVER
` Texas State Bar No. 24028049
` ctolliver@ccrglaw.com
`GEORGE T. “JORDE” SCOTT
` Texas State Bar No. 24061276
` jscott@ccrglaw.com
`MITCHELL SIBLEY
` Texas State Bar No. 24073097
` msibley@ccrglaw.com
`JOHN HEUTON
` Admitted Pro Hac Vice
` jheuton@ccrglaw.com
`CHARHON CALLAHAN
`ROBSON & GARZA, PLLC
`3333 Lee Parkway, Suite 460
`Dallas, Texas 75219
`Telephone: (214) 521-6400
`Telecopier: (214) 764-8392
`
`Counsel for Defendants Teso LT, UAB,
`Oxysales, UAB, and Metacluster LT, UAB
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`
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`11
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`Case 2:19-cv-00395-JRG Document 613 Filed 10/05/22 Page 12 of 12 PageID #: 32417
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served this 5th day of October 2022, with a copy of this document via CM/ECF.
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`
`
`
`
`/s/ Ronald Wielkopolski
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`CERTIFICATE OF CONFERENCE
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`The undersigned hereby certifies that the counsels for the parties have complied with Local
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`Rule CV-7(h). A telephonic meet and confer was held on October 5, 2022 with counsel partici-
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`pating including Ron Wielkopolski on behalf of Plaintiff; Steven Callahan on behalf of Defend-
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`ants. The parties partially dispute this motion.
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`
`
`/s/ Ronald Wielkopolski
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`12
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