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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`GOOGLE LLC,
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`Defendant.
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`Plaintiff,
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`v.
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Civil Case No. 6:21-cv-569-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANT GOOGLE LLC’S OPPOSED MOTION FOR LEAVE TO FILE SUR-
`REPLY TO PLAINTIFF TOUCHSTREAM TECHNOLOGIES, INC.’S MOTION FOR
`RECONSIDERATION OF DENIAL OF MOTION TO COMPEL PRODUCTION OF
`GLOBAL USAGE METRICS
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`On November 16, Judge Gilliland granted-in-part and denied-in-part Touchstream’s motion
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`to compel. Touchstream moved for reconsideration on one aspect of that order, denying global (non-
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`US) discovery regarding alleged damages from performance of method claims where there was no
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`dispute that the allegedly infringing steps are performed outside the United States. Touchstream
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`moved for reconsideration (Dkt. 107), Google filed its opposition (Dkt. 110), and Touchstream filed
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`a reply (Dkt. 112). Google now moves for leave to file a sur-reply (Ex. 1) to address a new argument
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`that Touchstream raised for the first time in reply.
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`“[A] Motion for Leave to File a Surreply may be granted if the party requesting leave
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`demonstrates exceptional or extraordinary circumstances,” which “include new issues, theories, or
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`arguments addressed in the reply that require a response.” Lumintec, LLC v. Motorola Mobility LLC,
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`21-CV-00402-ADA, ECF# 49 at 2 (W.D. Tex. May 10, 2022) (Albright, J.) (citation omitted).
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`Touchstream’s reply argues, for the first time, that WesternGeco implicitly overturned the
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`Federal Circuit’s clear directive laid out in Power Integrations, Inc. v. Fairchild Semiconductor Int’l,
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`Case 6:21-cv-00569-ADA Document 114 Filed 12/07/22 Page 2 of 2
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`Inc., 711 F.3d 1348 (Fed. Cir. 2013). That is not only a new argument, but also wrong. Accordingly,
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`Google requests leave to file the attached sur-reply briefly addressing this new (and incorrect)
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`argument
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`Dated: December 7, 2022
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`Respectfully submitted,
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`By: /s/ Tharan Gregory Lanier, with
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`permission by Shaun W. Hassett
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`JONES DAY
`Tharan Gregory Lanier (Admitted pro hac vice)
`CA State Bar No. 138784
`E-mail: tglanier@jonesday.com
`Michael C. Hendershot (Admitted pro hac vice)
`CA State Bar No. 211830
`E-mail: mhendershot@jonesday.com
`Evan M. McLean (Admitted pro hac vice)
`CA State Bar No. 280660
`E-mail: emclean@jonesday.com
`1755 Embarcadero Road
`Palo Alto, CA 94303
`Telephone: (650) 739-3939
`Facsimile:
`(650) 739-3900
`
`POTTER MINTON PC
`Michael E. Jones
`TX State Bar No. 10929400
`E-mail: mikejones@potterminton.com
`Shaun W. Hassett
`TX State Bar No. 24074372
`E-mail: shaunhassett@potterminton.com
`110 N. College Ave., Suite 500
`Tyler, TX 75702
`Telephone:
` (903) 597-8311
`Facsimile:
` (903) 593-0846
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`Attorneys for Defendant
`GOOGLE LLC
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`2
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