Case 6:21-cv-00569-ADA Document 122 Filed 12/19/22 Page 1 of 13
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`N 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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`Plaintiff,
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`v.
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`Defendant.
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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 RESPONSE TO PLAINTIFF TOUCHSTREAM
`TECHNOLOGIES, INC.’S OBJECTIONS TO AND APPEAL FROM MAGISTRATE
`JUDGE’S ORDER
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`INTRODUCTION AND BACKGROUND FACTS
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`On November 16, U.S. Magistrate Judge Gilliland held a hearing on Touchstream’s motion
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`I.
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`to compel. Judge Gilliland expressly ruled on every issue presented, and Touchstream’s motion was
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`granted-in-part and denied-in-part. Two days later, and before any written ruling issued,
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`Touchstream moved for reconsideration of one of Judge Gilliland’s rulings, the denial of discovery
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`of worldwide usage metrics. On December 16, Judge Gilliland denied Touchstream’s motion for
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`reconsideration, noting Touchstream “fail[ed] to identify a basis to allow discovery on foreign usage
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`concerning products that allegedly perform the accused method outside the United States.” (ECF
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`No. 120 at 5). Now, almost a month after the underlying order, and after Touchstream’s motion for
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`reconsideration was fully briefed but before the motion for reconsideration was decided,
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`Touchstream filed objections to Judge Gilliland’s decision on this discovery issue. But, just as it
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`failed to show that reconsideration was appropriate, Touchstream utterly fails to show any basis,
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`much less any clear error of law, that justifies reversal of Judge Gilliland’s decision by this Court.
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`1
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`Case 6:21-cv-00569-ADA Document 122 Filed 12/19/22 Page 2 of 13
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`Judge Gilliland afforded the parties the ample opportunity to fully argue in person their
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`positions on every issue, and in denying Touchstream’s motion for reconsideration meticulously
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`addressed the inability of the authority upon which Touchstream relies to argue a clear error of law.
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`(ECF No. 120). Fact discovery has long closed, opening and rebuttal expert reports have been
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`exchanged, expert depositions are under way, dispositive motions are due this month, and trial is set
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`for February. As discussed at the hearing, this case cannot go to trial as scheduled if Touchstream
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`refuses to let discovery end. Mindful of the limited resources of the Court, the stage of the case, the
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`nearness of trial, and the fact that Touchstream has failed to establish any basis for setting aside
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`Judge Gilliland’s order, Touchstream’s objections should be denied.
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`II.
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`LEGAL STANDARD
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`Judge Gilliland’s order resulted from a motion that Touchstream presented and the parties
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`and Court treated as a discovery motion under the OGP. Judge Gilliland made a ruling expressly
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`and specifically on a request for certain discovery, and subsequently denied Touchstream’s motion
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`for reconsideration of partial denial of Touchstream’s “motion to compel”. (ECF No. 120). Orders
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`on motions to compel discovery are non-dispositive and reviewed under the “clearly erroneous or
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`contrary to law” standard. City of Allen, TX v. Time Warner Cable Texas, LLC, 2021 WL 8442038,
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`at *1 (W.D. Tex. July 16, 2021) (Albright, J.); Gomez v. Ford Motor Co., No. 2017 WL 5201797,
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`at *1 (W.D. Tex. Apr. 27, 2017) (same) (citing Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995));
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`Alexander v. Martin, 2010 WL 11531112, at *2 (E.D. Tex. Feb. 1, 2010) (same).1
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`1 Touchstream contends that the order was potentially dispositive, and therefore subject to a higher
`standard of review, unless Google stipulates away its right to raise issues on Daubert or dispositive
`motions to come later this month. (ECF No. 119 at 4). This is a new argument raised for the first
`time in this objection. But it is not clear why this would matter – as established in the briefing on
`Touchstream’s motion for reconsideration, in the ruling denying that order, and below – Judge
`Gilliland got it right, and the ruling survives review under any standard.
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`2
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`A party may object to a magistrate judge’s non-dispositive orders. FED. R. CIV. P. 72(a); 28
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`U.S.C. § 636(b)(1)(A). The reviewing court may reconsider the magistrate judge’s ruling where the
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`objecting party demonstrates that the magistrate judge’s ruling is “clearly erroneous” or “contrary
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`to law.” 28 U.S.C. § 636(b)(1)(A). Rule 4(c) of Appendix C of the Local Rules provides that a
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`party may appeal a magistrate judge’s order by specifically designating the basis for the objection,
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`and the district court shall set aside orders found to be clearly erroneous or contrary to law. The
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`“clearly erroneous” standard does not empower a reviewing court to reverse a magistrate judge’s
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`finding because it would have decided the matter differently. See, e.g., Anderson v. Bessemer City,
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`N.C., 470 U.S. 564, 573-74 (1985). Instead, the “clearly erroneous” standard is met when despite
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`the existence of evidence to support the finding, the Court, upon reviewing the record in its entirety,
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`“is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting United
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`States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
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`III. ARGUMENT
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`A.
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`Touchstream’s Objections to Judge Gilliland’s Non-Dispositive Order Are
`Untimely And Thus Waived
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`As initial matter, Touchstream’s objections to Judge Gilliland’s order should be dismissed
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`outright as untimely and waived. With respect to appeals of non-dispositive matters, Rule 4(a) of
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`Appendix C of the Local Rules provides: “Any party may appeal from a magistrate judge’s order
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`determining a motion or matter under subsection l (c) of these rules [which permits magistrate judges
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`to rule on discovery motions], supra, within 14 days after issuance of the magistrate judge’s order,
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`unless a different time is prescribed by the magistrate judge or a judge.” The discovery hearing on
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`Touchstream’s motion to compel occurred on November 16. At the hearing Judge Gilliland ruled
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`expressly on Touchstream’s motion and ordered the parties to undertake certain actions. Certainly,
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`Touchstream cannot possibly be claiming that Judge Gilliland’s orders during the hearing were
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`inconsequential or ineffective, particularly since both sides complied with the rulings without
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`waiting for a written order.
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`Yet, despite the orders issued during the November 16 hearing, Touchstream did not file the
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`present objections until December 13—well after the 14 day deadline to file objections.2
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`Touchstream’s objections are thus untimely and waived. Consorcio Constructor Impregilo v. Mack
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`Trucks, Inc., 497 F. Supp. 591, 593 (E.D. Pa. 1980) (“where a dissatisfied party fails to file timely
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`objections, the court need not entertain the appeal, for the . . . period provided by [Section] 636(b)(1)
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`forms a maximum, not a minimum, framework”); Ott v. Quarterman, 2006 WL 2035618, at *5 (N.D.
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`Tex. July 19, 2006) (overruling objections as untimely); West v. Ruiz, 2020 WL 7350900, at *1 (S.D.
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`Tex. Dec. 15, 2020) (same); see also Fisher v. McGee, 202 F.3d 277 (9th Cir. 1999) (“Because the
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`magistrate judge’s ruling on [a] motion to compel was a non-dispositive ruling and [movant] failed
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`to file a timely objection to the order, this court lacks jurisdiction to consider the denial of his motion
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`to compel.”)
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`B.
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`Touchstream’s Objections Should Be Denied Because They Have Not
`Established That Judge Gilliland’s Decision Was A Clear Error of Law
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`The asserted claims in this case are method claims that purportedly relate to “casting” of
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`video—finding content on one screen and watching it on another, at the most simplistic level. The
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`motion to compel expressly sought information on casting and non-casting activity outside the US.
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`The issue here is whether Judge Gilliland’s decision denying discovery of worldwide usage metrics
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`was a clear error of law. As laid out in the briefing concerning Touchstream’s motion for
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`2 To the extent Touchstream maintains that some written document triggers the 14-day timeline,
`receipt of the November 16 transcript captures the full scope of Judge Gilliland’s orders at the
`hearing. And even applying the date of receipt of the transcript (November 22 (Dkt. No. 109)),
`Touchstream’s objections remain untimely.
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`reconsideration and Judge Gilliland’s order denying that motion, Touchstream utterly fails to show
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`any error, much less a clear error of law.
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`There is no dispute that “infringement of a method claim requires that each of the claimed
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`steps [be] performed within the United States.” Meyer Intell. Properties Ltd. v. Bodum, Inc., 690
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`F.3d 1354, 1371 (Fed. Cir. 2012); INVT SPE LLC v. Int’l Trade Comm’n, 46 F.4th 1361, 1371 (Fed.
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`Cir. 2022) (holding infringement of method “claims require[] actual performance of each claimed
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`step . . . in the United States”); ECF No. 120 at 5. Because damages are confined to the extent of
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`the infringement, at the hearing Judge Gilliland astutely inquired “how foreign sales data could
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`somehow inform damages on method claims practiced in the U.S.” Nov. 18 Hrg. Tr. at 31. Judge
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`Gilliland gave Touchstream every opportunity to confirm or correct the characterization of the
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`claims at issue and to argue the facts and the cases at length (the hearing lasted well over an hour).
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`Ultimately, Judge Gilliland correctly denied Touchstream’s request for foreign data concerning
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`methods indisputably performed outside of the United States, id. at 33, as well as Touchstream
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`motion for reconsideration of that decision (ECF No. 120).
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`Touchstream seemingly takes issue with Judge Gilliland’s inquiry concerning method claims
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`and Touchstream’s request over discovery about alleged practicing of those claims abroad. But the
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`Federal Circuit has long recognized that there is a “clear distinction between method and apparatus
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`claims for purposes of infringement liability.” Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 576
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`F.3d 1348, 1363-65 (Fed. Cir. 2009) (en banc) (noting that “[s]upplying an intangible step [i.e., a
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`method] is . . . a physical impossibility” and holding that presumption against extraterritoriality
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`applies to Section 271(f)). It was therefore proper, and certainly not clearly erroneous, for Judge
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`Gilliland to have considered the kinds of asserted claims in evaluating the propriety of
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`Touchstream’s extremely broad foreign discovery request within the bounds of the infringement
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`allegations.
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`Touchstream’s position is effectively that, pursuant to the asserted method claims, it is
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`entitled to worldwide damages over methods that are limited features (which are not always used)
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`in products with multiple other uses that are made and sold outside of the United States, and which
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`are never imported, on the basis that those features were designed in California. That is, relying on
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`some design occurring in California, Touchstream contends it is entitled to damages for products
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`that are never made, used, sold, or imported to the United States. Like Judge Gilliland did here (ECF
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`No. 120), the Federal Circuit found that argument unpersuasive in Power Integrations, Inc. v.
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`Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348 (Fed. Cir. 2013).
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`At the hearing, Touchstream argued that it was entitled to non-US data because the infringing
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`“products” “were made in the United States.” Of course, Touchstream only asserts method claims
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`to which this argument has no relevance, if it even makes sense. Touchstream argument is no
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`different than the one made by the patentee in Power Integrations, since they appear to “argue[] that
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`it was foreseeable that [Google’s] infringement in the United States would cause” Touchstream to
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`sustain damages linked to Google’s revenues “in foreign markets.” Id. at 1370. In other words, that
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`“but for [Google’s] domestic infringement,” here alleged as the design of some product features in
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`California, Touchstream’s foreign damages would not have arose. Id.
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`The Federal Circuit recognizes that “U.S. patent law does not operate extraterritorially to
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`prohibit infringement abroad,” and, accordingly, that they “do not . . . provide compensation for a
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`defendant’s foreign exploitation of a patented invention.” Id. at 1371; accord Microsoft Corp. v. AT
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`& T Corp., 550 U.S. 437, 454-55 (2007) (“The presumption that United States law governs
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`domestically but does not rule the world applies with particular force in patent law.”). In view of
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`that, Power Integrations held that:
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`Regardless of how the argument is framed under the facts of this case,
`the underlying question here remains whether [plaintiff] is entitled to
`compensatory damages for injury caused by [alleged] infringing
`activity that occurred outside the territory of the United States. The
`answer is no.
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`[Plaintiff] is incorrect that, having established one or more acts of
`direct infringement in the United States [i.e., here alleged design in
`California], it may recover damages for [defendant’s] worldwide sales
`of the patented invention because those foreign sales were the direct,
`foreseeable result of [defendant’s] domestic infringement. [Plaintiff]
`has not cited any case law that supports an award of damages for sales
`consummated in foreign markets, regardless of any connection to
`infringing activity in the United States. To the contrary, the entirely
`extraterritorial production, use, or sale of an invention patented in the
`United States is an independent, intervening act that, under almost all
`circumstances, cuts off the chain of causation initiated by an act of
`domestic infringement.
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`711 F.3d at 1371-72. Similarly, in no uncertain terms, this Court has held that the precise tenuous
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`domestic design that Touchstream relies on is insufficient to open up the door to worldwide data.
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`Indeed, “[t]he mere domestic design of an infringing product is not an act of infringement.” Bel
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`Power Solutions v. Monolithic Power Systems, 6-21-CV-00655-ADA, ECF No. 63 (W.D. Tex.
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`2022) (Albright, J.) (denying motion to compel foreign sales) (emphasis added).
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`Simply put, there is (a) clear precedential authority that rejects the precise argument
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`Touchstream makes, and (b) clear directive from this Court rejecting Touchstream’s proposition that
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`the mere domestic design of an infringing product warrants foreign discovery. Touchstream
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`therefore has not shown any clear error of law on Judge Gilliland’s part and their objections should
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`be denied.
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`C.
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`Touchstream Offers No Controlling Authority That Establishes Judge
`Gilliland’s Decision Was A Clear Error of Law
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`Touchstream’s objections do not bother to address Power Integrations, Inc. v. Fairchild
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`Semiconductor Int’l, Inc., 711 F.3d 1348 (Fed. Cir. 2013) in substance. Instead, they contend that
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`Power Integrations was implicitly overruled by WesternGeco LLC v. Ion, 138 S.Ct. 2129 (2018),
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`and also focus on Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 807 F.3d 1283 (Fed. Cir. 2015).
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`Touchstream is wrong on both counts—there is no implicit overruling, and neither case controls the
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`circumstances of this case or Judge Gilliland’s order.
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`First, WesternGeco shows why Touchstream cannot establish any clear error of law in Judge
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`Gilliland’s ruling. Here, Touchstream has only asserted infringement under § 271(a). WesternGeco
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`addressed a different subsection of § 271, narrowly holding that foreign damages are recoverable
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`under § 271(f) in light of that statute’s unique history and in a circumstance in which all of the
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`relevant manufacturing and supply of the relevant components originated from the United States.
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`Section 271(f)(2) clearly contemplates foreign activity by virtue its exportation component:
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`Whoever without authority supplies or causes to be supplied in or from the United States
`any component of a patented invention that is especially made or especially adapted for use
`in the invention and not a staple article or commodity of commerce suitable for substantial
`noninfringing use, where such component is uncombined in whole or in part, knowing that
`such component is so made or adapted and intending that such component will be combined
`outside of the United States in a manner that would infringe the patent if such combination
`occurred within the United States, shall be liable as an infringer.
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`In view of that, WesternGeco analyzed the focus of 35 U.S.C. 271(f) and asked “whether the
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`conduct relevant to that focus occurred in United States territory.” 138 S.Ct. at 2136. Unlike
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`§ 271(a), under the explicit text of § 271(f)(2), the focus “is on the act of exporting components from
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`the United States.” Id. at 2138. So it was the “domestic act of supplying the components that
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`infringed WesternGeco’s patents,” thus the damages awarded “were a domestic application of
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`§ 284.” Id.
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`The holding of WesternGeco with respect to § 271(f)(2)—a subsection of the statue that
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`unquestionably contemplates extraterritoriality—is therefore not applicable to Touchstream’s
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`infringement allegations under § 271(a), which is the subsection examined by Power Integrations
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`and explicitly focuses on activity “within the United States,” unlike § 271(f)’s references to
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`contemplated conduct “outside the United States.”
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`Touchstream’s note that the underlying district court that Power Integrations reversed
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`subsequently expressed the view that WesternGeco implicitly overturned the case is of no
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`consequence. The Federal Circuit has cited to Power Integrations on multiple instances since
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`WesternGeco was issued, and there is no Federal Circuit opinion casting any doubt on the ongoing
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`precedential effect of Power Integrations with respect to § 271(a). Indeed, WesternGeco specifically
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`cabined the issue presented to whether § 271(f)’s should be interpreted in the same way as § 271(a)
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`with respect to extraterritoriality, and held that “[t]aken together, § 271(f)(2) and § 284 allow the
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`patent owner to recover for lost foreign profits.” 138 S. Ct. at 2135, 2139.3 As other sister courts
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`have noted, “there is still no federal precedent holding that WesternGeco overruled previous Federal
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`Circuit precedent [i.e. Power Integrations] with respect to damages available for § 271(a)
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`infringement.” Brumfield , Tr. for Ascent Tr. v. IB LLC, 586 F. Supp. 3d 827, 840 (N.D. Ill. 2022)
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`(noting “infringement under § 271(f), unlike infringement under § 271(a), explicitly contemplates
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`3 Even the dissent in the Federal Circuit WesternGeco that formed the basis for the petition for
`certiorari to the Supreme Court cautioned against the extreme overexpansion that Touchstream is
`attempting to achieve here:
`[W]here a product is designed in the United States by an “infringing use of the
`patented method,” and units of the product are then “manufactured, sold, and used
`abroad,” the number of units produced abroad bears little or no relationship to the
`extent of the infringement in the United States. This is because once a product is
`designed, an unlimited number of non-infringing units may be produced from that
`design.
`WesternGeco L.L.C. v. ION Geophysical Corp., 837 F.3d 1358, 1368 (Fed. Cir. 2016) (Wallach, J.,
`dissenting-in-part) (cleaned up).
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`limited foreign activities that are actionable in the United States” and citing collection of courts that
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`have “agreed that Power Integrations and its progeny remain binding precedent even after
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`WesternGeco”).
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`Second, Touchstream’s reliance on Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 807
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`F.3d 1283 (Fed. Cir. 2015), is similarly misplaced. The court there emphasized that to overcome
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`the “strength of the presumption against extraterritoriality,” it “was not enough” to argue “that the
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`damages-measuring foreign activity ha[s] been factually caused, in the ordinary sense, by domestic
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`activity.” Id. 1307. So, “given the ease of finding cross-border casual connections,” the court
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`recognized it was imperative that the “presumption against extraterritoriality” be “given its due.” Id.
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`at 1307 (citing Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 266 (2010) (noting
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`“presumption against extraterritorial application would be a craven watchdog indeed if it retreated
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`to its kennel whenever some domestic activity is involved in the case”)). To that end, even where
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`“sales” are tied to “domestic infringement as a causation matter” (i.e., here from alleged design in
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`California), “that conclusion is not enough” to use the foreign “sales as a direct measure of the
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`royalty except as to sales that are domestic.” Id.
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`Carnegie Mellon addressed an completely different issue (whether certain accused chips
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`were sold in the US) that is not present here:
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`In Carnegie Mellon, the defendant Marvell, a California-based
`company, was alleged to have infringed two patents relating to
`semiconductor chips. Carnegie Mellon Univ. v. Marvell Tech. Grp.,
`Ltd., 986 F. Supp. 2d 574, 582 (W.D. Pa. 2013). Marvell
`manufactured the infringing chips in Taiwan and sold them to makers
`of hard-disk drives, who incorporated the chips into the drives. Id. at
`592-93. The hard-disk drives were then incorporated into laptops, and
`some of those laptops were eventually imported back to the United
`States. Id. at 594. The jury found that Marvell had infringed both
`patents, and awarded the plaintiff, CMU, a royalty based on Marvell’s
`worldwide sales. Carnegie Mellon, 807 F.3d at 1291-92. On appeal,
`Marvell challenged the royalty base used by the jury. The Federal
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`Circuit held that the chips that Marvell manufactured and sold abroad
`but were ultimately imported into the United States were properly
`included in the royalty base. Id. at 1305.
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`Opticurrent, LLC v. Power Integrations, Inc., No. 17-CV-03597-EMC, 2019 WL 2389150, at *6
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`(N.D. Cal. June 5, 2019), aff’d, 815 F. App’x 547 (Fed. Cir. 2020).4
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`In this case, the issue is not where accused products are sold; it is where the steps of the
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`asserted method claims are performed. In Carnegie Mellon some infringing chips were imported
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`into the United States, and there was a dispute as to whether others were sold in the United States.
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`Unlike in Carnegie Mellon, in this case it is uncontested that the foreign activities or products (once
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`used) that allegedly infringe the accused method abroad, over which Touchstream requests
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`discovery, are not sold, used, or imported into the United States. Here, Touchstream has already
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`obtained extensive discovery concerning damages from products that allegedly perform the accused
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`method domestically, and there is no basis to allow discovery on foreign usage concerning products
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`that allegedly perform the accused method outside the United States. Moreover, as Judge Gilliland
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`correctly pointed out in denying Touchstream’s motion for reconsideration, unlike in Carnegie
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`Mellon, here “it is uncontested that the foreign activities or products that allegedly infringe the
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`accused method (through use of limited features not always used) abroad are not sold, used, or
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`imported into the United States.” ECF No. 120 at 4.
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`* * *
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`In short, WesternGeco did not implicitly overturn Power Integrations and Touchstream
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`cannot establish any error of law in Judge Gilliland’s decision. As this Court has already held,
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`Touchstream’s bare casual-connection assertion about “[t]he mere domestic design of an infringing
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`4 The other cases cited by Touchstream from sister courts are inconsequential as none are binding
`or establish a clear error of law, and, as Judge Gilliland correctly noted in denying reconsideration,
`they are distinguishable and not applicable. ECF No. 120 at 2-5.
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`Case 6:21-cv-00569-ADA Document 122 Filed 12/19/22 Page 12 of 13
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`product” is insufficient for foreign data because design alone “is not an act of infringement.” Bel
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`Power Solutions, ECF No. 63. There is no clear error of law (ECF No. 120), and Touchstream’s
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`objections to Judge Gilliland’s order should thus be overruled.
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`IV. CONCLUSION
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`Touchstream fails to show a clear error of law or fact, and there is no new evidence to warrant
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`overruling Judge Gilliland’s decision denying Touchstream’s motion to compel. And, the extensive
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`briefing and arguments establish that Judge Gilliland’s order was correct, under any standard of
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`review. Accordingly, Google respectfully requests that the Court deny Touchstream’s motion.
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`Case 6:21-cv-00569-ADA Document 122 Filed 12/19/22 Page 13 of 13
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`Dated: December 19, 2022
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`Respectfully submitted,
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`By: /s/ Tharan Gregory Lanier with permission
`by Michael E. Jones
`Tharan Gregory Lanier
`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
`Patrick C. Clutter
`TX State Bar No. 24036374
`E-mail: patrickclutter@potterminton.com
`110 N. College Ave., Suite 500
`Tyler, TX 75702
`Telephone:
` (903) 597-8311
`Facsimile:
` (903) 593-0846
`
`Attorneys for Defendant
`GOOGLE LLC
`
`
`
`13
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`