Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 1 of 25
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`PLAINTIFF,
`
`CIVIL CASE NO. 6:21-CV-569-ADA
`
`V.
`
`JURY TRIAL DEMANDED
`
`GOOGLE LLC,
`
`U.S. DISTRICT
`ALBRIGHT
`
`JUDGE ALAN
`
`DEFENDANT.
`
`TOUCHSTREAM TECHNOLOGIES, INC.’S OPPOSITION TO GOOGLE LLC’S
`RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW
`
`i
`
`Comcast, Ex. 1185
`Comcast v. Touchstream
`IPR2024-00322
`
`

`

`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 2 of 25
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`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`INTRODUCTION .............................................................................................................. 1
`
`LEGAL STANDARDS ...................................................................................................... 1
`
`SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDINGS OF
`INFRINGEMENT............................................................................................................... 1
`
`A.
`
`Substantial Evidence Supports the Jury’s Findings that Google’s Products Include
`the Claimed “Server System.” ................................................................................ 1
`
`1.
`
`2.
`
`Google’s Rehashed Claim Construction Arguments Fail. .......................... 2
`
`Touchstream Established Google’s Use of the Claimed “Server System.” 5
`
`B.
`
`Google’s Divided Infringement Arguments Fail. ................................................... 7
`
`1.
`
`2.
`
`3.
`
`The Media Player is Not Responsible for Performing Any of the Claimed
`Method Steps. ............................................................................................. 8
`
`Users Do Not Perform the Claim Step of Sending Messages. .................. 11
`
`Device Manufacturers Do Not Perform Claim Steps. .............................. 12
`
`C.
`
`Substantial Evidence Supports the Jury’s Finding of Infringement of Each and
`Every Claim of the Asserted Patents. ................................................................... 12
`
`1.
`
`2.
`
`3.
`
`Substantial Evidence Showed Google’s Receiver SDK is a Server
`Component that Performs the Claimed Steps. .......................................... 12
`
`Substantial Evidence Supports the Jury’s Finding that the App ID
`Identifies a Location of a Media Player. ................................................... 12
`
`Substantial Evidence Supports the Jury’s Finding that Google Performs
`the “Storing” Limitation. .......................................................................... 15
`
`IV.
`
`SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDING THAT THE
`CLAIMS ARE NOT INVALID........................................................................................ 16
`
`V.
`
`CONCLUSION ................................................................................................................. 19
`
`
`
`
`
`
`
`
`
`
`
`ii
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`

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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 3 of 25
`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Jiaxing Super Lighting Electric Appliance Co. v. CH Lighting Co.,
`2023 WL 2415281 (W.D. Tex. 2023) ............................................................................... 18
`
`Page(s)
`
`Apple Inc. v. Samsung Elecs. Co., Ltd,
`839 F.3d 1034 (Fed. Cir. 2016)......................................................................................... 14
`
`Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP,
`616 F.3d 1249 (Fed. Cir. 2010)........................................................................................... 3
`
`Egenera, Inc. v. Cisco Sys., Inc.,
`547 F. Supp. 3d 112 (D. Mass. 2021) ................................................................................. 3
`
`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)........................................................................................... 2
`
`Intell. Ventures I LLC v. Symantec Corp.,
`2016 WL 948879 (D. Del. Mar. 10, 2016) ......................................................................... 3
`
`Janvey v. Dillon Gage, Inc. of Dallas,
`856 F.3d 377 (5th Cir. 2017) .............................................................................................. 1
`
`Kyocera Senco Indus. Tools Inc. v. ITC,
`22 F.4th 1369 (Fed. Cir. 2022) ........................................................................................... 3
`
`Medtronic, Inc. v. Teleflex Innovations S.À.R.L.,
`68 F.4th 1298 (Fed. Cir. 2023) ......................................................................................... 18
`
`Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)........................................................................................... 2
`
`NTP, Inc. v. Research in Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005)........................................................................................... 3
`
`Orion IP, LLC v. Hyundai Motor Am.,
`605 F.3d 967 (Fed. Cir. 2010) (applying Fifth Circuit law) ............................................... 1
`
`Packet Intelligence LLC v. NetScout Sys., Inc.,
`965 F.3d 1299 (Fed. Cir. 2020)......................................................................................... 14
`
`iii
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`

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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 4 of 25
`
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`Raytheon Co. v. Indigo Sys. Corp.,
`895 F.3d 1333 (Fed. Cir. 2018)........................................................................................... 1
`
`Sibia Neurosciences, Inc. v. Cadus Pharmaceutical Corp.,
`225 F.3d 1349 (Fed. Cir. 2000)................................................................................. 1, 8, 16
`
`Smith & Nephew, Inc. v. Ethicon, Inc.,
`276 F.3d 1304 (Fed. Cir. 2001)......................................................................................... 11
`
`Stamps.com Inc. v. Endicia, Inc.,
`437 F. App'x 897 (Fed. Cir. 2011) .................................................................................... 18
`
`Taylor-Travis v. Jackson State University,
`984 F.3d 1107 (5th Cir. 2021) ........................................................................................ 6, 8
`
`TQP Development, LLC v. Intuit Inc.,
`2014 WL 2809841 (E.D. Tex. 2014) ................................................................................ 12
`
`Verizon Servs. Corp. v. Cox Fibernet Va., Inc.,
`602 F.3d 1325 (Fed. Cir. 2010)........................................................................................... 2
`
`Verizon Servs. Corp. v. Vonage Holdings Corp.,
`503 F.3d 1295 (Fed. Cir. 2007)........................................................................................... 4
`
`
`
`iv
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 5 of 25
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`I. INTRODUCTION
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`Google’s Motion for Judgment as a Matter of Law (“JMOL”) seeks to undo the jury’s
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`factual findings and misapplies foundational principles of patent law. But substantial evidence
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`supports the jury’s findings. Google’s products perform each and every step of Touchstream’s
`
`patent claims, and Google’s invalidity arguments failed for multiple reasons. Google fails to carry
`
`the heavy burden required for JMOL, and its motion should be denied.
`
`II. LEGAL STANDARDS
`
`
`
`Judgment as a matter of law is improper unless “a reasonable jury would not have a legally
`
`sufficient evidentiary basis to find for the party on that issue.” Janvey v. Dillon Gage, Inc. of
`
`Dallas, 856 F.3d 377, 384–85 (5th Cir. 2017). “[A]fter a jury trial, [the] standard of review is
`
`especially deferential.” Id. A court may only grant JMOL when “the facts and inferences point so
`
`strongly and overwhelmingly in favor of one party that the court concludes that reasonable jurors
`
`could not arrive at a contrary verdict.” Raytheon Co. v. Indigo Sys. Corp., 895 F.3d 1333, 1338
`
`(Fed. Cir. 2018) (quoting Orion IP, LLC v. Hyundai Motor Am., 605 F.3d 967, 973 (Fed. Cir.
`
`2010) (applying Fifth Circuit law)). The Court “must presume that the jury resolved all factual
`
`disputes in favor of the prevailing party,” and the factual findings should be left “undisturbed as
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`long as they are supported by substantial evidence.” Sibia Neurosciences, Inc. v. Cadus
`
`Pharmaceutical Corp., 225 F.3d 1349, 1354 (Fed. Cir. 2000).
`
`III. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDINGS OF
`INFRINGEMENT
`
`A.
`
`Substantial Evidence Supports the Jury’s Findings that Google’s Products
`Include the Claimed “Server System.”
`
`Google argues the claim term “server system” was not properly construed and that its
`
`products do not use a “server system.” Both arguments fail. The Court properly found that the term
`
`“server system” should be afforded its plain and ordinary meaning, rejecting Google’s proposed
`
`1
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 6 of 25
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`limitations and resolving any scope dispute. The evidence introduced at trial provided substantial
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`evidence for a reasonable jury to find that Google’s accused products utilize the claimed “server
`
`system,” along with every other aspect of the claims. See generally, Ex. A.
`
`1.
`
`Google’s Rehashed Claim Construction Arguments Fail.
`
`Before trial, the Court resolved any dispute over the scope of “server system” when it
`
`rejected Google’s proposed construction that a “server system” is a “separate and distinct
`
`instrumentality” from the “display device” and assigned “server system” its plain and ordinary
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`meaning. Dkt. 225 at 50:17-19. Google continues to take issue with this ruling and again reiterates
`
`the rejected arguments from its summary judgment motion of non-infringement. Dkt. 130 at 1; Mot.
`
`at 1-3 (citing 02 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir.
`
`2008)). But “[u]nlike O2 Micro, where the court failed to resolve the parties’ quarrel, the district
`
`court rejected [Google’s] construction.” Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197,
`
`1207 (Fed. Cir. 2010). Specifically, the Court, in denying Google’s MSJ, resolved the parties’
`
`claim-scope dispute, considering fully-briefed argument regarding (1) the claims themselves, (2)
`
`the specification, (3) the prosecution history, and (4) extrinsic evidence. Dkt. 225, at 28-36; 50:17-
`
`19; Dkt. 161, at 3-16. Applying the plain and ordinary meaning at trial, Touchstream presented
`
`evidence from which a reasonable fact finder could determine that Google’s accused products use
`
`a server system. Tr. 398:24-399:14; 401:1-402:13; 414:24-415:17. While Google now attempts to
`
`resurrect its claim construction arguments, “[r]estating a previously settled argument does not
`
`create an ‘actual dispute regarding the proper scope of the claims’ within the meaning of O2
`
`Micro.” Finjan (citing Verizon Servs. Corp. v. Cox Fibernet Va., Inc., 602 F.3d 1325, 1334 (Fed.
`
`Cir. 2010)).
`
`Even if the Court did not previously resolve the scope dispute (it did), there is no reason to
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`2
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 7 of 25
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`revise the construction now in light of the intrinsic evidence and controlling precedent. As stated
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`in Touchstream’s MSJ response, Google conflated logical separation with physical separation: the
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`claims recite the server system and display device as distinct components, but that does not require
`
`them to reside within different physical pieces of hardware. Dkt. 170, at 3-16; Intell. Ventures I
`
`LLC v. Symantec Corp., 2016 WL 948879, at *3 (D. Del. Mar. 10, 2016), aff'd, 725 F. App'x 976
`
`(Fed. Cir. 2018) (computer software is different than physical inventions, and system components
`
`can share a physical structure); see Egenera, Inc. v. Cisco Sys., Inc., 547 F. Supp. 3d 112, 123–24
`
`(D. Mass. 2021) (citing NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1310 (Fed. Cir.
`
`2005)). On this point, Google’s cited cases are inapposite: they cover physical inventions where
`
`physical separation is the only kind of separation possible. Becton, Dickinson & Co. v. Tyco
`
`Healthcare Grp., LP, 616 F.3d 1249 (Fed. Cir. 2010) (medical needle patent); Kyocera Senco
`
`Indus. Tools Inc. v. ITC, 22 F.4th 1369 (Fed. Cir. 2022) (nailgun patent). Software is neither a
`
`nailgun nor a needle. As the District of Delaware explained in rejecting a similar argument based
`
`on Becton, “Becton involved physical components, whereas the [claimed component] in the
`
`present invention undisputedly involves both hardware and software. Here, the claims involve
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`digital, rather than physical separation.” Intell. Ventures II, 2016 WL 948879 at *3. The same is
`
`true here. Becton and Kyocera offer Google no support.
`
`As discussed in the summary judgment briefing and at the pretrial conference, a plain-and-
`
`ordinary construction of the term “server system” is supported by the claims, specification,
`
`prosecution history, and extrinsic evidence. Dkts. 161, 225. The claims do not specify the display
`
`device and server system must be physically separate devices. Likewise, the specification
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`describes the “server system” as including different server components running on different
`
`machines. See, e.g. 251 Patent 3:14-15, ‘528 Patent 3:9-10, ‘289 Patent 3:14-15; ‘251 Patent 11:9-
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`3
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 8 of 25
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`16; ‘528 Patent 11:5-11; ‘289 Patent 11:9-16 (describing that components need not be separated).
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`Finally, the prosecution history supports the Court’s construction. The Examiner required
`
`the “separate from” language for the “personal computing device,” such that it must be separate
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`from both the “display device” and “server system.” But he did not require any similar limitation
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`for the “server system.” Dkt. 170, Ex. R Examiner Rejection, 5. In other words, only the “personal
`
`computing device” must be separate from the other components. If the Examiner had similar issues
`
`with the “server system,” he would have asked for the same “separate from” language.
`
`Google’s citation to the prosecution history misconstrues the prior art and fixates on the
`
`mere mention of a local network in an attempt to overcome the plain meaning of the claims. Mot.
`
`at 5, Ex. 2. Here, Google does not and cannot point to any “clear and unambiguous” disavowal of
`
`relevant claim scope. Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1306 (Fed.
`
`Cir. 2007). Rather, the prosecution history cited by Googled related to a prior art patent application
`
`where the relevant operations occurred on the user’s “computing device.” Id., Ex. 2 at 6-7. The
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`distinction pressed in the file history was that, in that prior art, the relevant operations occurred on
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`the “personal computing device,” the one place the Touchstream patents say the “server system”
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`cannot be. ‘251 Patent, 11:28-30; ‘528 Patent, 11:20-23, ‘289 Patent, 11:25-29; see Tr. 401:1-17
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`(Touchstream’s expert, Dr. Almeroth noting the personal computing device and server system
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`must be separate). This distinction in no way suggests that the server system must be physically
`
`distinct from the “display device,” as Google now argues.
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`While the claims, specification, and prosecution history all support the Court’s plain and
`
`ordinary construction, Google complains that Touchstream’s expert, Dr. Almeroth, relied on a
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`Microsoft technical dictionary to explain the meaning of a “server” to the jury. However, Dr.
`
`Almeroth was not engaged in claim construction analysis, and by the time he testified, the Court
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 9 of 25
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`had already ordered a plain and ordinary meaning. Thus, Google’s complaints about Dr.
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`Almeroth’s reliance on this “extrinsic” evidence ring hollow; the Court already determined that
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`physical separation was unnecessary, so it was appropriate for Dr. Almeroth to explain the plain
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`meaning of the term “server” with reference to a well-accepted dictionary definition. Tellingly,
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`Google does not dispute the accuracy of Microsoft’s definition of “server,” nor could it reasonably
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`do so as its expert also relied on a Microsoft dictionary. Ex. B, Dr. Mayer-Patel Rebuttal Report.
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`Here again, Google fails to provide any basis for the Court to revisit its prior claim construction
`
`holding or to grant JMOL of non-infringement based on its erroneous claim construction.
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`2.
`
`Touchstream Established Google’s Use of the Claimed “Server
`System.”
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`There was more than substantial evidence at trial to support the jury’s verdict that the
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`“server system” limitations were met. Through its technical expert, Touchstream identified three
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`components in Google’s “server system”: the Receiver SDK, Cast Services on the device, and Cast
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`Services in the cloud. Tr. 401:6-17, 430:1-24, 434:9-:435:2, 439:17-440:7, 464:10-18; see JTX
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`187 at 10, JTX 116, JTX 118. Touchstream did not hand-wave in its identification of Google’s
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`server system. Dr. Almeroth consistently identified the “server system” by reference to Google’s
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`own documents and his unambiguous testimony and demonstratives at trial.
`
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`Ex. A, Almeroth Demonstrative, at 53 (Tr. 430) (identifying “server system” in green)
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`5
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 10 of 25
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`Google responded by disputing whether the identified components are “servers” and
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`contesting what a “server” is. The jury considered and rejected these arguments. The “court must
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`draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility
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`determinations or weigh the evidence.” Taylor-Travis v. Jackson State University, 984 F.3d 1107,
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`1112 (5th Cir. 2021).
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`For instance, Google challenged Touchstream’s mapping of various “services” to the
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`claimed “server” components, contending that its architecture did not include servers. But its own
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`corporate witness undid this strategy in a telling admission:
`
`“Q. And so Google refers to both of these things, both on the device and in the
`cloud, as Cast service, correct?
`
`A. We generally do not refer to them as Cast service as the same thing. The Cast
`services or servers -- services and servers are generally used interchangeably at
`Google. ‘Cast service’ means system service, which is a very particular computer
`science term that means something that is always running on a physical device in
`an operating system.”
`
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`Tr. 885:14-20 (emphasis added). Consistent with this admission acknowledging that Google’s
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`“service” modules constitute “servers,” Dr. Almeroth explained why the components he identified
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`constitute the claimed “server system” when applying a plain-and-ordinary meaning, and Dr.
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`Almeroth further explained how this “server system” interacts with the other claimed components
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`to perform the claim steps implicating the “server system.” Tr. 398:11-23, 401-404, 423:10-
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`426:10, 430:4-24, 431:6-432:20, 434:12-435:2, 439:17-440:7, 451-453.
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`Google’s motion also turns back to its “peer-to-peer” distraction, claiming “unrebutted”
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`testimony shows Google does not use a server because Chromecast is a “peer-to-peer” architecture.
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`Mot. at 7. Far from being “unrebutted,” this theory was rebutted by the testimony of Google’s own
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`witnesses. For instance, Mr. Van Der Staay testified as follows: “Q. Peer-to-peer communications
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`can be accomplished using servers, correct? A. Servers are one way that you can create a peer-
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 11 of 25
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`to-peer connection. Yes.” Tr. 882:6-9 (testimony of Mr. Van Der Staay); see also Tr. 750:6-9
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`(deposition testimony of Mr. Bakar). That its own witnesses could not toe the corporate line
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`demonstrates Google’s “peer-to-peer” position was untenable.
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`It is thus unpersuasive for Google to accuse Touchstream of “handwaving” with respect to
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`the term “server.” Mot. At 8. Google complains that the “mDNS server,” “MDx server,” “Orbit
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`server,” or “DIAL server” “did not have anything to do with the functionality of the claimed server
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`system.” Id. This is not the case. The MDx and Orbit server components are involved in practicing
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`the method claims in the “DIAL / MDx scenario” as detailed by Dr. Almeroth. Tr. 464:10-18
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`(referencing JTX 116 and JTX 118 detailing the MDx / Orbit server). As to the mDNS and DIAL
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`components, Touchstream never claimed they were the accused server system. Rather,
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`Touchstream used the existence of those server components to impeach Google’s witnesses and to
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`show that their testimony contradicted Google’s own internal documents. See Tr. 235:4-6;
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`1035:21-1037:21.
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`In short, Touchstream, through its expert, applied the Court’s claim construction guidance
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`and identified Google’s “server system” components as required by the claims. This identification
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`was clear and consistent, and there was more than enough evidence for a reasonable jury to find
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`that Google infringes.
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`B.
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`Google’s Divided Infringement Arguments Fail.
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`Google’s attempt to upend the verdict based on alleged failures to prove divided
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`infringement should also be denied. First, Touchstream presented more than sufficient evidence to
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`establish that Google practices each of the steps of the asserted claims. Second, to the extent the
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`jury may have found that Google did not practice each step of the claims, it was properly instructed
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`with respect to what is required for direct infringement involving the acts of multiple parties. Dkt.
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`7
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 12 of 25
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`246, at 26. Here, the Court should presume that the jury found in favor of Touchstream that Google
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`practiced each of the steps of the claims, and there is substantial evidence to support such a finding.
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`Sibia Neurosciences, Inc. v. Cadus Pharmaceutical Corp., 225 F.3d 1349, 1354 (Fed. Cir. 2000);
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`Taylor-Travis v. Jackson State University, 984 F.3d 1107, 1112 (5th Cir. 2021).
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`1.
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`The Media Player is Not Responsible for Performing Any of the
`Claimed Method Steps.
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`Google argues “the alleged infringement requires actions and components provided by
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`third parties,” citing the “media player” claim element. Mot. at 9. While Google’s cast ecosystem
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`includes third party media players, the asserted claims do not include any claim steps performed
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`by those media players. Rather, the evidence presented at trial demonstrates that Google performs
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`each of the claimed method steps, including steps involving the media players. For
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`instance,
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`Google’s motion notes the claimed “server system” must “identify[]” “programing code . . . for
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`controlling presentation of the content,” and the “content presentation device” must “use[]” a
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`“particular media player to execute the programing code.” Mot. at 9. As written, these claim steps
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`are performed by the claimed “server system” and “content presentation device,” components Dr.
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`Almeroth mapped to components provided by Google. Tr. 423:10-426:10 (describing personal
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`computing device, content presentation device, and server system), 451:19-454:10 (Dr. Almeroth
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`explaining to the jury that Google’s Receiver SDK performs the claim steps of “identifying
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`programming code”); JTX 187.
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`Instead of disputing Touchstream’s technical evidence regarding the functionality of
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`Google’s own components or Dr. Almeroth’s mapping of the claim steps to those components,
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`Google now attempts to muddy the water by arguing for non-infringement on the basis of
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`customizations of the “receiver SDK” by third parties. Mot. at 10. Google argues that, because
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 13 of 25
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`certain apps do not “use all of the SDK,” Google does not infringe. Id. Google’s argument here,
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`at best, relies on disputed issues of fact that the jury resolved in Touchstream’s favor.
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`Google’s argument centers on Mr. Van Der Stay’s testimony that the receiver SDK “is
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`optional.” Mot. at 10. This testimony, however, contradicts Mr. Van Der Stay’s previous testimony
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`where he admitted that, for the apps to use “any” cast messages, they “have to use the cast SDK.”
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`Tr. 219:4-16 (“in order for you to actually use any of the, like, received messages from cast, like
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`what we’ve been talking about, or be able to report information back to the cast ecosystem about
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`what you're actually doing, you have to use the cast SDK.”). Google documents also confirm the
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`mandatory nature of using the SDK. See JTX 187 at 8 (stating Receiver SDK is necessary for the
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`media player (“Partner App”) to communicate with other components). This is illustrated by the
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`below figure from Google’s document (JTX 187). As shown, the receiver cast SDK provides the
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`only path between the apps (e.g., YouTube and Spotify) and the cast services.
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`JTX 187, at 30
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`
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`Based on this testimony and documentation, Dr. Almeroth explained that the receiver SDK
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`acts as the “bridge” or “glue” enabling communication between the apps and Google’s cast
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`services. Tr. 430:15-18; 452:22-23. Dr. Almeroth further explained it is the receiver SDK that
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 14 of 25
`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 14 of 25
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`allows for the handling of casting functions, includingthe ability to “play” the video,asillustrated
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`by the below demonstrative.
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`‘289 Claim|
`
`]
`
`f
`if
`
`Micah Rupersburg
`Senior Engineering Manager
`
`Cast v2 @
`
`Open Cast @
`
`Q. What purpose doesthe receiverSDK serve
`onacast-cnabled device?
`
`A.
`
`It provides what I would describe as glue
`from Cast messages into the actual
`application, sothatthe applications don't
`have tounderstandtheCastprotocol, and,
`instead, they talk through a JavaScript
`API and/or through the HTML API
`provided bythe browser.
`
`Q. Doesthe receiver SDK provide theability to
`handle media messages like Play andSeek?
`identifying, by the server system, programming code corresponding
`Ye
`A
`to the action control command, wherein the programming code is for
`controlling presentation of
`the content by the content presentation —
`device using the particular media player
`
`Ex. A. Almeroth Demonstrative, at 76 (Trial Tr. 451-453)
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`Thus, notwithstanding any customizations provided by third parties,
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`the evidence
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`demonstrates that the receiver SDK enables the handling of the messages(e.g., a play command)
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`from the applications, and Dr. Almeroth wasclear that this SDK software is provided by Google,
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`not the third party. Tr. 551:6-16 (“Q. Whoprovides the software that is receiver SDK? A. That's
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`Google.”); see also Tr. 547:5-548:11.! Based on the evidencepresentedattrial, the jury was more
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`than justified in rejecting Google’s customization arguments and finding that Google performs
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`each of the claim steps, including the steps involving third-party media players.
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`1 Far from “ignoring” third parties customizing applications, Dr. Almeroth showed the
`exact lines of Google’s Receiver SDK code doing the identification of programming code,
`including when those commands are customized. Trial Tr. 455:9-457:17. For example, Dr.
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`Almeroth explained that
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 15 of 25
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`2.
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`Users Do Not Perform the Claim Step of Sending Messages.
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`Google also incorrectly asserts that end-users must perform claim limitations for the
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`patents to be infringed. Mot. at 11-12. The claims do not contain any user-performed tasks, and
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`Google ignores a key tenet of patent law: the claims govern infringement, not the specification.
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`Specifically, Google argues it does not infringe because it does not send messages to a
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`server system. But the claims only require that the messages are received in the server system. See
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`id. (quoting claim language requiring “receiving in a server system, one or more messages from a
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`personal computing device . . .”). Google does not argue that there was insufficient evidence to
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`show that messages are received by Google. Thus, the Court should deny Google’s motion.
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`In its motion, Google conflates what is required by the claims with what is described in the
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`specification: just because casting generally occurs after a user presses a button does mean that
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`such user actions should be read into the claims. It is well-settled that “[i]nfringement arises when
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`all of the steps of a claimed method are performed, whether or not the infringer also performs
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`additional steps.” Smith & Nephew, Inc. v. Ethicon, Inc., 276 F.3d 1304, 1311 (Fed. Cir. 2001).
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`Indeed, Touchstream’s claim were drafted to require that the claimed act of “receiving” be
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`performed “in a server system,” not through the performance of some “additional step” by the user
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`or by some other component.
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`Google also tried and failed to make this argument to the jury as it cross examined Dr.
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`Almeroth: “Q. Okay. And Google provides software and devices, right? A. They do. Q. All right.
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`When users -- but it’s users who perform that method, right? A. No.” Trial Tr. 503:17-22. The jury
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`reasonably chose to credit the testimony of Dr. Almeroth—in light of the claim’s actual
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`requirements—to find that Google performs each step of the claimed methods.
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`Case 6:21-cv-00569-ADA Document 287 Filed 10/25/23 Page 16 of 25
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`3. Device Manufacturers Do Not Perform Claim Steps.
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`Google argues, in a brief paragraph devoid of authority, that Touchstream failed to prove
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`direction and control of hardware manufacturers. Mot. at 13. Here, Touchstream introduced
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`significant volumes of evidence detailing how Google’s software, acting on all accused hardware
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`devices, controls casting. JTX 203, Trial Tr. 443-446, 453-457. This is not controverted by the
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`existence of third parties manufacturing some machines in the cast ecosystem because it is still
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`Google’s software performing the claim limitations. TQP Development, LLC v. Intuit Inc., 2014
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`WL 2809841, *12-*14 (E.D. Tex. 2014) (Bryson, J., sitting by designation)). Google’s half-page
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`argument provides no basis for disturbing the jury’s verdict.
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`C.
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`Substantial Evidence Supports the Jury’s Finding of Infringement of Each
`and Every Claim of the Asserted Patents.
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`1.
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`Substantial Evidence Showed Google’s Receiver SDK is a Server
`Component that Performs the Claimed Steps.
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`As discussed above, the Receiver SDK performs the relevant steps of the method claims,
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`and Google fails to identify any claim step not performed by Google. Supra Section B.1. While
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`developers may choose to use only a portion of the features of the Receiver SDK, they still must
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`use the core infringing features of the Receiver SDK such as “play” and “pause” control
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`commands, and the Receiver SDK provides the only path or bridge between the apps (e.g.,
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`YouTube and Spotify) and the cast services. See JTX 187 at 30; Trial Tr. 430:15018; 452:22-23.
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`As Dr. Almeroth explained in detail, Google’s Receiver SDK is the component that performs the
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`relevant claim step here. Supra Section B.1. The jury credited the detailed record and resolved the
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`dispute in Touchstream’s favor.
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`2. Substantial Evidence Supports the Jury’s Finding that the App ID
`Identifies a Location of a Media Player.
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`Google’s argument that the Cast App ID does not “identify a location of the particular
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`media player” asks the Court to dispose of the jury’s credibility determinations and substitute
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`Google’s own determinations in their stead. Not only is this a disputed fact issue, but Google’s
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`shaky testimony on the subject was easily disregarded.
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`Dr. Almeroth explained that the App ID identifies the location of a media player in the app
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`load and launch messages. See Tr. at 438:4-439:2, 447:13-448:7, 522:16-523:1, 526:12-528:5.
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`Google’s contention that “[t]he only evidence regarding the Cast App ID was that it is merely a
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`number and does not itself identify a location” is incorrect. Mot. at 14. Dr. Almeroth testified the
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`App ID identifies a location while Mr. Van Der Staay and Dr. Mayer Patel claimed—at trial—it
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`does not. Compare Tr. at 438:4-439:2, 447:13-448:7, 522:16-523:1, 526:12-528:5 with Mot. at 14-
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`15. Google’s witnesses, however, changed their position on this very point. In his deposition
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`testimony (which was played to the jury), Mr. Van Der Staay testified that the Chromecast device
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`uses the “app identifier” to locate and load the correct application. Tr. 199:14-200:14 (Q. And if it
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`is, then the receiver will look up to figure out the URL that contains the HTML application
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`associated with that applica