Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 1 of 22 PageID #: 27492
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Bright Data Ltd.,
`
`Plaintiff,
`
`V.
`
`Teso LT, UAB, Oxysales, UAB, and
`Metacluster LT, UAB,
`
`Defendants.
`
`Civil Action No.
`2:19-cv-00395-JRG
`
`DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR A PRELIMINARY AND
`PERMANENT INJUNCTION AGAINST INFRINGEMENT
`
`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 1 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 2 of 22 PageID #: 27493
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ......................................................................................................... ii
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`PAGE
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`INTRODUCTION ......................................................................................................................... 1
`
`ARGUMENT ................................................................................................................................. 1
`
`I.
`
`II.
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`Bright Data’s Motion Is Premature ........................................................................ 1
`
`This Court Should Deny Bright Data’s Request for a Preliminary
`Injunction ............................................................................................................... 2
`
`III.
`
`This Court Should Deny Bright Data’s Request for a Permanent Injunction ........ 3
`
`A.
`
`Bright Data Has Failed to Prove That It Has Suffered an
`Irreparable Harm ........................................................................................ 4
`
`1.
`
`2.
`
`3.
`
`Bright Data’s Two-Year Delay in Moving for Injunctive
`Relief Defeats Any Claim That It Has Suffered Irreparable
`Harm .............................................................................................. 4
`
`Bright Data Cannot Establish a Causal Nexus Between
`Oxylabs’ Alleged
`Infringement and Any Alleged
`Irreparable Harm ............................................................................ 5
`
`Bright Data’s Willingness to License Its Patents Refutes
`Irreparable Harm ............................................................................ 9
`
`4.
`
`Bright Data’s Other Arguments on Irreparable Harm Fail .......... 10
`
`B. Monetary Damages Can Adequately Compensate for Any Alleged
`Injury ........................................................................................................ 11
`
`C.
`
`The Balance of Hardships/Equities Between the Parties Must Be
`Weighed Against the Weakness of the Jury’s Verdict ............................. 14
`
`IV. Objections to Bright Data’s Proposed Order ....................................................... 14
`
`CONCLUSION ............................................................................................................................ 15
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`CERTIFICATE OF SERVICE .................................................................................................... 17
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` i
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`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 2 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 3 of 22 PageID #: 27494
`
`TABLE OF AUTHORITIES
`
` PAGE(S)
`
`CASES
`
`ActiveVideo Networks, Inc. v. Verizon Communc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012)..................................................................................4, 9, 12
`
`Ameritox, Ltd. v. Millennium Health, LLC,
`2015 WL 3825499 (W.D. Wisc. June 19, 2015) .................................................................5
`
`Apple, Inc. v. Samsung Elecs. Co.,
`678 F.3d 1314 (Fed. Cir. 2015)........................................................................................3, 4
`
`Apple Inc. v. Samsung Elecs. Co.,
`809 F.3d 633 (Fed. Cir. 2015)........................................................................................5, 14
`
`Belden Techs., Inc. v. Superior Essex Commc’ns, LP,
`802 F. Supp. 2d 555 (D. Del. 2011) .................................................................................14
`
`BuzzBallz, LLC v. JEM Beverage Co.,
`2015 WL 3948757 (N.D. Tex. June 26, 2015) ....................................................................3
`
`Cave Consulting Group, LLC v. OptumInsight, Inc.,
`2016 WL 4658979 (N.D. Cal. Sept. 7, 2016) ..............................................................10, 12
`
`Douglas Dynamics, LLC v. Buyers Prods. Co.,
`2011 WL 13196006 (W.D. Wisc. Feb. 28, 2011) ..............................................................13
`
`eBay Inc. v. MercExchange, L.L.C.,
`547 U.S. 388 (2006) .............................................................................................................1
`
`Exxon Chem. Patents, Inc. v. Lubrizol Corp.,
`64 F.3d 1553 (Fed. Cir. 1995)..............................................................................................2
`
`Genband US LLC v. Metaswitch Networks Ltd.,
`211 F. Supp. 3d 858 (E.D. Tex. 2016), vacated on other grounds,
`861 F.3d 1378 (Fed. Cir. 2017)........................................................................................4, 5
`
`Genband US LLC v. Metaswitch Networks Corp.,
`861 F.3d 1378 (Fed. Cir. 2017)........................................................................................5, 6
`
`Genband US LLC v. Metaswitch Networks Corp.,
` 2018 WL 11357619 (E.D. Tex. Mar. 22, 2018) .............................................................6, 9
`
`Golden Hour Data Sys., Inc. v. emsCharts, Inc.,
`2014 WL 8708239 (E.D. Tex. Mar. 31, 2014) .................................................................15
`
` ii
`
`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 3 of 22
`
`

`

`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 4 of 22 PageID #: 27495
`
`Gonannies, Inc. v. Goupair.com, Inc.,
`
`464 F. Supp. 2d 603 (N.D. Tex. 2006) ................................................................................3
`
`H.D. Vest, Inc. v. H.D. Vest Mgmt. & Servs., LLC,
`
`2009 WL 1766095 (N.D. Tex. June 23, 2009) ....................................................................3
`
`High Tech Med. Instrumentation, Inc. v. New Image Indus., Inc.,
`
`49 F.3d 1551 (Fed. Cir. 1995)..............................................................................................3
`
`Humanscale Corp. v. CompX Int’l Inc.,
`
`2010 WL 1779963 (E.D. Va. Apr. 29, 2010) ....................................................................13
`
`IMX, Inc. v. Lendingtree, LLC,
`
`2007 WL 1232184 (D. Del. Apr. 25, 2007) .......................................................................13
`
`Innovation Ventures, LLC v. Ultimate Lifestyles, LLC,
`
`2009 WL 1490588 (E.D. Tex. May 27, 2009) ....................................................................3
`
`Int’l Rectifier Corp. v. IXYS Corp.,
`
`383 F.3d 1312 (Fed. Cir. 2004) .........................................................................................15
`
`Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp.,
`
`712 F. Supp. 2d 1285 (M.D. Fla. 2010) .............................................................................10
`
`Joseph Paul Corp. v. Trademark Custom Homes, Inc.,
`
`2016 WL 4944370 (N.D. Tex. Sept. 16, 2016)....................................................................3
`
`MercExchange, L.L.C. v. eBay, Inc.,
`
`500 F. Supp. 2d 573 (E.D. Va. 2007) ..................................................................................5
`
`Millennium Rests. Grp., Inc. v. City of Dallas,
`
`181 F. 211 F, Supp. 2d 659 (N.D. Tex. 2001) ...................................................................13
`
`Monsanto Co. v. Geertson Seed Farms,
`
`561 U.S. 13 (2010) ...............................................................................................................1
`
`Nichia Corp. v. Everlight Am., Inc.,
`
`855 F.3d 1328 (Fed. Cir. 2017)....................................................................................3, 4, 9
`
`Novartis Pharms. Corp. v. Teva Pharms. USA, Inc.,
`
`2007 WL 2669338 (D.N.J. Sept. 6, 2007), aff’d, 280 Fed. Appx. 996
`
`(Fed. Cir. 2008) (per curiam) .............................................................................................12
`
`Nutrition 21 v. United States,
`
`930 F.2d 867 (Fed. Cir. 1991)............................................................................................12
`
`SAS Inst., Inc. v. World Programming Ltd.,
`
`2016 WL 3475281 (E.D.N.C. June 17, 2016) ...................................................................10
`
`
`
` iii
`
`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 4 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 5 of 22 PageID #: 27496
`
`SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC,
`807 F.3d 1311 (Fed. Cir. 2015) (en banc), vacated in part on other
`grounds, 137 S. Ct. 954 (2017) ............................................................................................5
`
`Scott v. Schedler,
`826 F.3d 207 (5th Cir. 2016) .............................................................................................15
`
`Server Tech., Inc. v. Am. Power Conversion Corp.,
`2015 WL 1505654 (D. Nev. Mar. 31, 2015), rev’d on other grounds,
`657 Fed. Appx. 1030 (Fed. Cir. 2016) ...........................................................................5, 13
`
`Smith & Nephew, Inc. v. Interlace Med., Inc.,
`955 F. Supp. 2d 69 (D. Mass. 2013) ..................................................................................14
`
`Sorkin’s Rx Ltd v. Express Scripts Inc.,
`2015 WL 249488 (E.D. Mo. Jan. 20, 2015) ......................................................................12
`
`Sun Water Sys., Inc. v. Vitasalus, Inc.,
`2007 WL 820280 (N.D. Tex. Mar. 8, 2007) ......................................................................13
`
`Tex. Advanced Optoelectronic Sols., Inc. v. Renesas Elecs. Am. Inc.,
`2019 WL 4805916 (E.D. Tex. Oct. 1, 2019) .......................................................................6
`
`Wireless Agents, L.L.C. v. T Mobile USA, Inc.,
` 2006 WL 1540587 (N.D. Tex. June 6, 2006) .....................................................................3
`
`RULES
`
`FED. R. CIV. P. 62(d) ................................................................................................................15
`
`FED. R. CIV. P. 65(d)(1) ...........................................................................................................14
`
` iv
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`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 5 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 6 of 22 PageID #: 27497
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`INTRODUCTION
`
`In eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), the Supreme Court rejected
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`the “general rule that courts will issue permanent injunctions against patent infringement absent
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`exceptional circumstances.” Id. at 391, 394. The Supreme Court held that plaintiffs in patent
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`cases, like plaintiffs in other cases, must prove on a case-by-case basis that they satisfy the well-
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`established requirements for injunctive relief. Id. at 394. In its motion (ECF No. 529), Bright
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`Data pays lip service to eBay but essentially argues for application of the rejected standard under
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`which courts granted permanent injunctions as a matter of course. Rather than proving
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`“exceptional circumstances” exist that would justify this Court’s granting the “drastic and
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`extraordinary remedy” of injunctive relief,1 Bright Data basically argues that injunctive relief is
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`appropriate because Oxylabs was found to have infringed at least one claim of at least one valid
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`patent – an unremarkable circumstance that would justify injunctive relief in any patent case
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`involving competitors. Consequently, Bright Data’s motion should be denied.
`
`I.
`
`Bright Data’s Motion Is Premature
`
`ARGUMENT
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`As a threshold matter, Oxylabs objects to Bright Data’s motion as premature where it
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`seeks injunctive relief based on the jury’s verdict even though: (1) no judgment has been entered;
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`and (2) Oxylabs has not yet filed its post-trial motions under Rules 50(b) and 59. Thus, Oxylabs
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`respectfully requests that the Court stay any ruling on Bright Data’s motion until it has the
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`benefit of Oxylabs’ fully-briefed arguments why the jury’s verdict should be set aside, especially
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`when those arguments also inform this Court’s analysis whether to grant injunctive relief. For
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`example, Oxylabs anticipates that its post-trial motions will show, inter alia, the following:
`
`1
`Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010); see also id. at 165-66
`(“If a less drastic remedy … [is] sufficient to redress [the movant’s] injury, no recourse to the
`additional and extraordinary relief of an injunction [is] warranted.”).
`
`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 6 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 7 of 22 PageID #: 27498
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`• Oxylabs is entitled to JMOL, or, at a minimum, a new trial, on its anticipation
`defense where the jury did not consider the prior art in view of the “correct”
`construction of “server,” and Bright Data did not distinguish the prior art on that
`basis. See Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555 (Fed.
`Cir. 1995) (“The duty of the trial judge is to determine the meaning of the claims at
`issue, and to instruct the jury accordingly.”) Prior to trial, Oxylabs requested
`clarification that the word “server” in the ’319 and ’510 Patents’ asserted claims
`should be construed as “a device that is operating in the role of a server,” and the
`Court “clarifie[d] that Defendants’ understanding of the scope of the constructions,
`as represented by the requested clarifications in Defendants’ Motion for Hearing,
`is correct.” ECF No. 453 at 7-11 (emphasis added). But the Court stated that “this
`understanding is already embedded in those terms’ construc-tion” (id.), did not
`instruct the jury on that “understanding,” and instead ordered the parties to follow
`the logic of the order (Pretrial Tr. (9-1-21) at 86:8-87:8).
`
`Bright Data violated that order. At trial, Bright Data’s expert Dr. Rhyne initially
`confirmed “server means it operates in the role of a server.” Trial Tr. (11/2/21) at
`204:9-22. But on redirect, at Bright Data’s counsel’s urging and over Oxylabs’
`objection, Dr. Rhyne agreed that the Court’s construction of “server” did not
`mention “roles” – thereby conveying to the jury that what the Court had held to be
`the “correct” construction of “server” was not required. Trial Tr. (11/2/21) at 254:3-
`257:8.2 Dr. Rhyne subsequently pointed to the absence of a “second server” as the
`sole basis to distinguish the asserted claims from Crowds. Trial Tr. (11/4/21) at
`211:22-212:10. In doing so, Dr. Rhyne never opined that jondo 4 of Crowds did not
`operate in the role of a server, but only that it was not labeled server. Id. at 212:15-
`24. Because Bright Data raised no distinction over Crowds based on the “correct”
`construction of the term “server,” Oxylabs is entitled to JMOL that the asserted
`claims are invalid as anticipated or, at a minimum, a new trial on that ground.
`
`• Bright Data’s expert Dr. Rhyne stated that the Oxylabs component “that actually
`performs the shifting to the first state or staying in the first state, or the shifting to the
`second state or staying in the second state limitation” of Claim 1 of the ’614 Patent –
`the sole independent claim upon which all of the ’614 Patent’s asserted claims
`depended – is “the Demon.” Trial Tr. (11/2/21) at 254:3-257:8. It is undisputed that
`the Demon is located outside the United States. Trial Tr. (11/3/21) at 119:18-25.
`Thus, Oxylabs does not infringe the ’614 Patent’s asserted claims as a matter of law.
`Similarly, the claimed methods in the ’319 and ’510 Patent’s asserted claims require
`use of the second server (the Demon) (id. at 212:19-215:1), and it is undisputed that
`the Demon is located outside the United States (Id. at 119:18-25).
`
`II.
`
`This Court Should Deny Bright Data’s Request for a Preliminary Injunction
`
`This Court should deny Bright Data’s cursory motion for a preliminary injunction
`
`2
`Oxylabs then filed a bench brief urging the Court instruct the jury on what the Court had
`already declared to be the “correct” understanding of the term “server,” which the Court denied.
`ECF No. 511; Trial Tr. (11/3/21) at 206:16-207:17.
`
` 2
`
`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 7 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 8 of 22 PageID #: 27499
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`because it was untimely filed. ECF No. 529 at 2, 15. Oxylabs has not found, and Bright Data
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`failed to cite, any authority granting a preliminary injunction where the plaintiff delays moving
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`for such relief until after the jury returns its verdict at trial – two full years after filing suit.
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`ECF Nos. 1, 516. Courts have held that far shorter periods of delay justify denial of such relief
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`because they show that plaintiffs are unlikely to suffer irreparable harm absent such relief.3
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`Bright Data does not attempt to justify its delay in requesting a preliminary injunction.
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`Alternatively, if the Court concludes Bright Data’s delay does not preclude consideration
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`of Bright Data’s request for a preliminary injunction, Bright Data’s request fails for the same
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`reasons as its request for a permanent injunction. Infra at 3-15; Winter v. Nat. Res. Def. Council,
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`Inc., 555 U.S. 7, 20 (2008) (requirements for preliminary injunction).
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`III.
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`The Court Should Deny Bright Data’s Request for a Permanent Injunction
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`To obtain a permanent injunction, Bright Data must prove that: (1) it has suffered an
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`irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to
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`compensate for that injury; (3) considering the balance of hardships between the plaintiff and
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`defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by
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`a permanent injunction. Nichia Corp. v. Everlight Am., Inc., 855 F.3d 1328, 1341 (Fed. Cir.
`
`3
`See, e.g., Apple, Inc. v. Samsung Elecs. Co., 678 F.3d 1314, 1325-26 (Fed. Cir. 2015)
`(affirming party’s failure to show it was likely to suffer irreparable harm based, in part, on
`delay); High Tech Med. Instrumentation, Inc. v. New Image Indus., Inc., 49 F.3d 1551, 1557
`(Fed. Cir. 1995) (no irreparable harm based in part on 17 month delay); Joseph Paul Corp. v.
`Trademark Custom Homes, Inc., 2016 WL 4944370, at *16 (N.D. Tex. Sept. 16, 2016) (denying
`preliminary injunction where “Plaintiff’s unexplained and undue delay of approximately six
`months strongly undercuts its claim of irreparable harm and contention regarding the need for
`urgent relief”); BuzzBallz, LLC v. JEM Beverage Co., 2015 WL 3948757, at *7 (N.D. Tex. June
`26, 2015) (same / based in part on 2-1/2 month delay); H.D. Vest, Inc. v. H.D. Vest Mgmt. &
`Servs., LLC, 2009 WL 1766095, at *4 (N.D. Tex. June 23, 2009) (same / based in part on 4-1/2
`month delay); Innovation Ventures, LLC v. Ultimate Lifestyles, LLC, 2009 WL 1490588, at *1,
`*3 (E.D. Tex. May 27, 2009) (same / based in part on 9 month delay); Gonannies, Inc. v.
`Goupair.com, Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006) (same / based on 4 month delay);
`Wireless Agents, L.L.C. v. T Mobile USA, Inc., 2006 WL 1540587, at *3 (N.D. Tex. June 6,
`2006) (1 year delay “is of itself sufficient to rebut the presumption of irreparable harm.”).
`
`
`
` 3
`
`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 8 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 9 of 22 PageID #: 27500
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`2017). Significantly, Bright Data “must prove that it meets all four equitable factors.” Id.; see
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`also id. at 1344 (affirming denial of permanent injunction where patentee “failed to establish one
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`of the four equitable factors”). As shown below, Bright Data failed to meet that heavy burden.
`
`A.
`
`Bright Data Has Failed to Prove That It Has Suffered an Irreparable Harm4
`
`1.
`
`Bright Data’s Two-Year Delay in Moving for Injunctive Relief
`Defeats Any Claim That It Has Suffered Irreparable Harm
`
`To establish irreparable harm, Bright Data must show “a likelihood of substantial and
`
`immediate irreparable injury.” Apple, Inc. v. Samsung Elec. Co., 678 F.3d at 1325. In Genband
`
`US LLC v. Metaswitch Networks Ltd., 211 F. Supp. 3d 858, 895 (E.D. Tex. 2016), vacated on
`
`other grounds, 861 F.3d 1378 (Fed. Cir. 2017), this Court noted that “‘delay in bringing an
`
`infringement action’ is a factor ‘that could suggest that the patentee is not irreparably harmed by
`
`the infringement.’” Specifically, the Court found that the plaintiff knew of the defendant’s
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`allegedly infringing products as early as 2007 but, despite such knowledge, “did not notify [the
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`defendant] of any infringement until 2014, when it filed this case” and “even then it did not seek
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`a preliminary injunction.” Id. (emphasis added). Based on these facts, the Court concluded that
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`“[the plaintiffs’] delay in bringing an infringement action against [the defendant] is indicative
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`that the patentee is not irreparably harmed by this infringement.” Id.
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`The reasoning underlying this Court’s ruling applies with equal force here. While it may
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`not be required to move for a preliminary injunction prior to trial, Bright Data’s deliberate
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`decision not to do so necessarily compromises any claim that Oxylabs’ alleged infringement
`
`caused it irreparable harm. If it truly believed Oxylabs’ alleged infringement caused it irrepara-
`
`ble harm, Bright Data could have but failed to move for injunctive relief shortly after filing suit.
`
`4
`Because the requirements of irreparable harm and adequacy of remedies at law are
`intertwined, Oxylabs respectfully requests that the Court apply Oxylabs’ arguments on each of
`those requirements to both requirements as appropriate. See, e.g., ActiveVideo Networks, Inc. v.
`Verizon Communc’ns, Inc., 694 F.3d 1312, 1337 (Fed. Cir. 2012).
`
`
`
` 4
`
`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 9 of 22
`
`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 10 of 22 PageID #: 27501
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`Thus, Bright Data cannot prove that Oxylabs’ alleged infringement caused it irreparable harm.5
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`2.
`
`Bright Data Cannot Establish a Causal Nexus Between Oxylabs’
`Alleged Infringement and Any Alleged Irreparable Harm
`
`To establish irreparable harm, a plaintiff must prove that there is a causal nexus between
`
`the defendant’s alleged infringement and the plaintiff’s alleged irreparable harm. See, e.g.,
`
`Genband US LLC v. Metaswitch Networks Corp., 861 F.3d 1378, 1383 (Fed. Cir. 2017). The
`
`requirement “ensures that an injunction is only entered against a defendant on account of a harm
`
`resulting from the defendant’s wrongful conduct, not some other reason.” Apple Inc. v. Samsung
`
`Elecs. Co., 809 F.3d 633, 640 (Fed. Cir. 2015). To satisfy the requirement, a plaintiff must show
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`“‘some connection’ between the patented features and the demand for the infringing products” –
`
`i.e., “that ‘a patented feature is one of several features that cause consumers to make their
`
`purchasing decisions.’” Genband US LLC, 861 F.3d at 1383; see also Apple Inc., 809 F.3d at
`
`642 (“[T]he district court should have required [the patentee] to show that the patented features
`
`impact consumers’ decisions to purchase the accused devices”).
`
`Where, as here, a plaintiff relies on lost market share from a defendant’s infringement to
`
`5
`See, e.g., SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 807 F.3d
`1311, 1331 (Fed. Cir. 2015) (en banc) (“Unreasonable delay in bringing suit may also be relevant
`to a patentee’s claim that continued infringement will cause it irreparable injury. … [D]istrict
`courts should consider all material facts, including those giving rise to laches, in exercising its
`discretion under eBay to grant or deny an injunction.”), vacated in part on other grounds, 137 S.
`Ct. 954 (2017); Genband US LLC, 211 F. Supp. 3d at 895 (“In a separate prong of analysis on
`the element of irreparable harm, laches may be a complete bar to an injunction.”); Ameritox, Ltd.
`v. Millennium Health, LLC, 2015 WL 3825499, at *2 (W.D. Wisc. June 19, 2015) (“If ongoing
`infringement had been such a concern for plaintiffs, one might reasonably ask why plaintiffs
`failed to seek a preliminary injunction earlier in the litigation. To move for a permanent injunc-
`tion during the trial/post-trial phase of the proceedings at least suggests a lack of urgency, if not a
`lack of ongoing injury.”); Server Tech., Inc. v. Am. Power Conversion Corp., 2015 WL 1505654,
`at *4 (D. Nev. Mar. 31, 2015) (monetary damages were adequate to compensate patentee for
`defendant’s infringement based, in part, because patentee “never asked for a preliminary
`injunction”), rev’d on other grounds, 657 Fed. Appx. 1030 (Fed. Cir. 2016); MercExchange,
`L.L.C. v. eBay, Inc., 500 F. Supp. 2d 556, 573 (E.D. Va. 2007) (failure to seek preliminary
`injunction “is yet another factor in the calculus indicating both that [the plaintiff] is not being
`irreparably harmed by [the defendant’s] infringement and that money damages are adequate”).
`
`
`
` 5
`
`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 10 of 22
`
`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 11 of 22 PageID #: 27502
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`establish irreparable harm, the Federal Circuit describes the causal nexus requirement as follows:
`
`Where the patentee relies on lost sales to show irreparable injury, it matters what reasons
`various buyers have for making the purchases lost to the patentee. If all but an
`insignificant number of purchases from the infringer would have been made even without
`the infringing feature, the causal connection to the asserted lost-sale-based injury is
`missing. But this court’s cases have now made clear that, under the causation approach,
`under the causation approach suitable for a multi-feature, multi-purchaser context, the
`patentee may be able to make the causal connection between infringement and the
`relevant lost sales through evidence of various kinds, e.g., that the infringing features
`significantly increased the product’s desirability, that soundly supports an inference of
`causation of a significant number of purchasers’ decisions.
`
`Genband US LLC, 861 F.3d at 1384. Absent such a showing, this Court has noted, “it is
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`unreasonable to conclude that a patentee will suffer the harm with or without an injunction, thus
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`undermining the need for an injunction in the first place.” Genband US LLC v. Metaswitch
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`Networks Corp., 2018 WL 11357619, at *2 (E.D. Tex. Mar. 22, 2018) (quotation omitted).
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`Bright Data failed to present any evidence at trial or in its motion that the alleged
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`infringing feature of Oxylabs’ services – as opposed to some other non-infringing feature or
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`feature previously disclosed in the prior art – was a driver of demand for Oxylabs’ services by a
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`significant number of consumers. See, e.g., Tex. Advanced Optoelectronic Sols., Inc. v. Renesas
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`Elecs. Am. Inc., 2019 WL 4805916, at *4-*5 (E.D. Tex. Oct. 1, 2019) (holding that patentee
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`failed to prove causal nexus); Genband US LLC, 2018 WL 11357619, at *3-*9 (same).
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`Specifically, Bright Data bases its causal nexus argument solely on an alleged causal nexus
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`between “residential proxies” and consumer demand for Oxylabs’ services. ECF No. 529 at 8.
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`But the trial record conclusively established that what Oxylabs calls “residential proxies” (a term
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`that is not found anywhere in the asserted patents) are admitted prior art, not the patented
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`feature. In its opening statement, Bright Data explained that “residential proxies” referred to
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`“the idea that you’re going to use real people and their laptops and phones and machines to
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`make requests for you” such that “we don’t have to rely on one proxy server; we can rely on
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` 6
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`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 11 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 12 of 22 PageID #: 27503
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`tens of millions of people’s devices … and we call them client devices and they can be used to
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`build a new network.” Trial Tr. (11/1/21) at 135:10-137:19.
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`Bright Data’s own expert, Dr. Rhyne, conceded that Crowds – prior art from a decade
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`before the earliest priority date of any asserted patent – described this very same “residential
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`proxy” concept. Specifically, Dr. Rhyne conceded that “jondos are essentially just user
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`computers” and that “there is no doubt that jondo 4 receives requests for content from jondo 5,
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`forwards the traffic on to jondo 6 to the web server, receives the content back from jondo 6, and
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`provides that content to jondo 5.” Trial Tr. (11/4/21) at 209:18-210:4 (emphasis added), 225:5-
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`10; see also Trial Tr. (11/3/21) at 274:22-275:17 (Oxylabs’ expert, Dr. Freedman, testifying that
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`“the idea of using volunteers as proxies for web traffic” “was an idea that started emerging in the
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`mid ‘90s” and was not new in 2009). Because Dr. Rhyne conceded that jondo 4 of Crowds is a
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`“residential proxy,” any alleged causal nexus between “residential proxies” and user demand is
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`irrelevant at best because that is admitted prior art rather than the infringing feature.
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`Significantly, Bright Data and Dr. Rhyne argued at trial that the ’319 and ’510 Patents’
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`asserted claims were different from Crowds not because of the “residential proxy” feature but
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`solely because “jondo 6” – mapped to the claimed “second server” – was not a “server.” Trial
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`Tr. (11/4/21) at 211:7-25. That is, Bright Data’s argument was that the novel feature of these
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`patents was using a “server,” not a user computer, to contact the “client device.” Id. Nowhere
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`does Bright Data attempt to show any causal nexus between consumer demand and that specific
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`aspect of the Oxylabs system.6 Instead, Bright Data’s argument shows that consumer demand
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`6
`The trial record is equally devoid of any evidence supporting a causal nexus between
`consumer demand and the use of a “server” rather than a user computer to contact a “client
`device.” For example, PTX-615 (a copy of Oxylabs’ website) lists many reasons why consumers
`might purchase the accused residential proxy product – “Unlimited concurrent sessions,”
`“Continuous proxy rotation,” “Country, city, and state-level targeting,” “100M+ residential”
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` 7
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`Code200, UAB, et al. v. Bright Data Ltd.
`Code200's Exhibit 1024
`Page 12 of 22
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`

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`Case 2:19-cv-00395-JRG Document 570 Filed 01/18/22 Page 13 of 22 PageID #: 27504
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`flows from the admitted prior art, not from the patented feature.
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`Bright Data’s causal nexus argument also fails for the ’614 Patent. In its opening
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`statement, Bright Data asserted that the ’614 Patent, which dated back to 2013, “adds another
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`step to this, which is in this case your device is only available as a proxy when certain criteria
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`are met.” Trial Tr. (11/1/21) at 139:8-11 (emphasis added). That is, Bright Data acknowledged
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`that the ’614 Patent, with a priority date four years after the ’319 and ’510 Patents, had to claim
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`different technology from those earlier patents. So Bright Data contends that the alleged
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`patented feature of the ‘614 Patent is the “another step” of determining availability “as a proxy
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`when certain criteria are met.” Id. Again, nowhere does Bright Data attempt to show any causal
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`nexus between consumer demand and that allegedly novel aspect of the Oxylabs system.
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`While Bright Data relies heavily on the jury’s award of lost profits damages to attempt to
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`establish a causal nexus (ECF No. 529 at 9-10), that award is immaterial. At most, the jury’s
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`award suggests that Bright Data would have made additional sales of its products if Oxylabs had
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`not been in the residential proxy market. But that says nothing about whether the patented
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`feature of the asserted claims (as opposed to non-infringing features or features disclosed in the
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`prior art) was a driver of consumer demand for Oxylabs’ services.
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`Finally, even if the relevant inquiry is whether “residential proxies” are a driver of
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`consumer demand for Oxylabs’ services (which it is not), Bright Data failed to present concrete
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`evidence that “residential proxies” were an actual driver of such consumer demand. Consistent
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`pool, “Zero CAPTCHAs,” “Zero IP blocking,” and more. Exhibit A. PTX-615 does not cite the
`importance of making requests