Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 1 of 15
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES,
`INC.
`
`Plaintiff
`
`v.
`
`GOOGLE LLC
`
`Defendant.
`
` Case No. 6:21-cv-569
`
`JURY TRIAL DEMANDED
`
`TOUCHSTREAM’S RESPONSE IN OPPOSITION TO GOOGLE LLC’s MOTION TO
`EXCLUDE CERTAIN OPINIONS OF DR. ALMEROTH
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 2 of 15
`
`I.
`
`INTRODUCTION
`
`Google’s motion relies on a series of strawmen. Regarding joint infringement, Dr.
`
`Almeroth does not, as Google claims, opine about the legal relationships between Google and the
`
`third-party developers that implement Google’s Cast SDK. Rather, he opines on the technical
`
`control Google maintains over the entire casting process. And—noting that Google’s witnesses
`
`testified that Google maintains the technical ability to ban apps that do not conform to its terms of
`
`service—points to applicable technical portions of those agreements. As Dr. Almoerth explains,
`
`although third-party developers may incorporate Google’s software into their own applications, it
`
`is Google’s software that actually performs the claimed steps—and Google maintains control over
`
`the infringing functionality through technical means. Dr. Almeroth offers no opinion or
`
`interpretation about the extent of the terms of service. This is entirely proper. See Datatreasury
`
`Corp. v. Wells Fargo & Co., No. 2:06-CV-72 DF, 2010 U.S. Dist. LEXIS 110659 (E.D. Tex. Sep.
`
`13, 2010).
`
`Google’s attacks on Dr. Almeroth’s opinions regarding secondary considerations of
`
`nonobviousness are similarly unavailing. Touchstream’s products enjoyed substantial industry
`
`praise and commercial success, and because those products were commercial embodiments of the
`
`very technology disclosed in the patents, it is Google’s burden to show that the success was
`
`attributable to something other than the patented technology. Google fails to acknowledge that
`
`burden, let alone make any attempt to carry it. Moreover, in addition to the accolades and sales
`
`garnered by Touchstream’s products, Google’s own infringing products enjoyed substantial
`
`commercial success. Rather than meaningfully address that success, Google focuses on a small
`
`1
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 3 of 15
`
`portion of the success that occurred before Google adopted its current casting protocol. And even
`
`then, Google’s argument is misplaced because (1) Dr. Almeroth did address the older protocol,
`
`and (2) the vast majority of the success occurred under the current version of the protocol (which
`
`was released just months after initial launch).
`
`In sum, Dr. Almeroth’s opinions are legally and factually sound. The Court should deny
`
`Google’s motion and allow the jury to hear his opinions on the issues joint infringement and
`
`secondary considerations of nonobviousness.
`
`II. FACTUAL SUMMARY
`
`A. Dr. Almeroth’s Joint Infringement Opinion
`
`Touchstream accuses Google of infringing a trio of patents that, broadly stated, claim a
`
`three-part architecture and messaging protocol to enable the user of a personal computing device
`
`(such as a mobile phone) to control the playback of videos from various media players over a
`
`network on a display device, and coordinated by a server system. See Ex. A, Almeroth
`
`Infringement Report, § VI. And, as Dr. Almeroth explained in his opening infringement report,
`
`Google’s casting protocols mirror this architecture through the use of “cast-enabled devices.” Id.,
`
`at ¶¶ 58-63.
`
`Google provides third-parties, such as
`
` a “Cast Protocol” with various components
`
`to implement into apps that operate on both a mobile phone (the “sender”) and cast device (the
`
`“receiver”). At a high level, and as relevant to the current motion, end users interact with Google-
`
`produced code in the Cast Protocol using a sender application on the personal computing device
`
`(e.g., a phone). Google provides this code to third-party developers as the “Cast Sender SDK.” Id.
`
`at ¶ 216. Google also provides a “Receiver Software Development Kit (SDK)” that performs many
`
`of the claimed functions on the cast-enabled device. Id. at ¶ 241. Third-party receiver applications
`2
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 4 of 15
`
`are required to utilize the Receiver SDK to handle incoming control commands and pass them to
`
`their respective media players. In this way, Google’s SDKs allow developers to build cast-
`
`compatible applications. In other words, Google provides the infringing code and functionality in
`
`every instance. Importantly, while third parties develop the sender and receiver applications in
`
`name
`
` the portion of the software that carries out the casting function
`
`operates from Google-authored code on the loaded SDKs.
`
`Dr. Almeroth opines that this system performs each of the steps claimed in the asserted
`
`patents and that, despite the distributed nature of the casting protocol, performance of the steps is
`
`attributable to Google. In support of this opinion, Dr. Almeroth points to various technical means
`
`by which Google controls and requires third-party apps to use of the Google SDKs and associated
`
`casting functionalities. For example, Dr. Almeroth cited the testimony of Michael Dodd, a Google
`
`software engineer, who testified that
`
`Dodd’s testimony that
`
`. Id.
`
`
`
`. Id. at 132. He further cited
`
`
`
`Dr. Almeroth further noted that Google has the technical ability to enforce compliance with
`
`these terms. Google requires developers to register their apps through Google’s “developer
`
`console,” id. ¶ 135. And, according to an internal company document, Google has
`
`” Id. at ¶ 131. Thus,
`
`. Id.
`
`3
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`
`
`
`
`
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 5 of 15
`
`Finally, in light of Google’s technical ability to ban third-party apps that do not utilize
`
`Google’s casting software, Dr. Almeroth cited to various terms of service that govern third-parties’
`
`use of Google’s Cast SDK. Specifically, he noted that these documents purport to maintain
`
`Google’s ownership of the Cast SDK, and state that Developers only have “a limited, worldwide
`
`royalty-free, non-assignable and non-exclusive license” to use it. Id. at ¶ 134. Dr. Almoerth further
`
`noted that these documents purport to allow Google to change “the form and nature of the SDK”
`
`without notice, withhold it from individual developers, or cease providing it altogether. Id. Dr.
`
`Almeroth also noted that Google’s documents state that developers must use Google’s Cast SDK
`
`to control content playback and state that developers are prohibited from circumventing the Cast
`
`SDK by engineering their own means of casting to the cast-enabled device. Id. at ¶ 130. Dr.
`
`Almeroth does not purport to interpret the legal import of these contracts, but, in light of Google’s
`
`admitted technical ability to ban non-compliant apps, recites their language to provide context to
`
`his technical analysis.
`
`B. Dr. Almeroth’s Opinion Regarding Secondary Considerations of
`Nonobviousness
`
`Dr. Almeroth opines that several secondary considerations supported a finding of
`
`nonobviousness. Ex. A, § XVI; Ex B, Almeroth Invalidity Rebuttal, XVI.
`
`First, he notes that various Touchstream products embodying the patents-in-suit have
`
`enjoyed substantial commercial success. Ex. A, at ¶ 507. Specifically, he notes that Touchstream
`
`licensed its technology, including the patents, to Quadriga Worldwide Ltd., Hewlett-Packard,
`
`Mash in Music Pty Ltd, and Fetch Interactive Television LLC. Id. He further notes that the cast-
`
`enabled products, which practice Touchstream’s patents, have also enjoyed substantial success.
`
`Specifically, he notes that in the five months after Chromecast’s initial launch, Google sold
`
`4
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 6 of 15
`
`roughly
`
`. And he further notes that this success continued in subsequent years.
`
`By 2020, Google had installed more than
`
` and more than
`
`. Id.
`
`Second, Dr. Almeroth notes that Touchstream’s patents satisfied a long-felt but unsolved
`
`need in the industry. Id. at ¶ 509. Specifically, he cites lack of interoperability among different
`
`streaming clients and servers. In Dr. Almeroth’s view, the Touchstream patents provided an
`
`elegant, inexpensive solution to this problem. Ex. A, Almeroth Infringement Report, ¶ 509.
`
`Third, Dr. Almeroth finds that “the inventions claimed in the Touchstream Patents received
`
`substantial industry recognition.” Id. at ¶ 510. Along with several other accolades, Dr. Almeroth
`
`notes that Forbes named Shodogg as a “Top 5 Technology” going into CES 2012; Shoodogg won
`
`the top prize in the LAUNCH competition at New York City’s Techweek conference; and My
`
`Media, a version of Shodogg adapted for use on hotel televisions, won “Best New Technology” at
`
`the 2013 Hospitality Industry Technology Exposition and Conference (“HITEC”). Id. ¶¶ 510-13.
`
`Finally, Dr. Almeroth cited evidence that “Google copied or at least modeled the Accused
`
`Chromecast Functionalities” based on the inventions disclosed in Touchstream’s patents.
`
`Notably for the purposes of Google’s motion, the apps Touchstream produced for Quadriga
`
`and Hewlett-Packard were commercial embodiments of the asserted patents. See Ex. C,
`
`Declaration of David Strober.
`
`III.ARGUMENT
`
`A. Dr. Almeroth’s opinion on Google’s joint infringement is proper.
`
`It is entirely proper that Dr. Almeroth should offer opinions regarding Google’s technical
`
`ability to direct and control the performance of infringing conduct by third parties. Direct
`
`infringement occurs where all steps of a claimed method are performed by or attributable to a
`5
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 7 of 15
`
`single entity. Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1022 (Fed. Cir.
`
`2015) (citing 35 U.S.C. § 271(a); BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1379–81
`
`(Fed. Cir. 2007)). Where more than one actor is involved in practicing the steps, a court must
`
`determine whether the acts of one are attributable to the other such that a single entity is responsible
`
`for the infringement. Id. This situation, often called joint infringement, can be established by, for
`
`example, showing that an alleged infringer “conditions participation in an activity or receipt of a
`
`benefit upon performance of a step or steps of a patented method and establishes the manner or
`
`timing of that performance.” Id. at 1023. In such instances, “the third party’s actions are attributed
`
`to the alleged infringer such that the alleged infringer becomes the single actor chargeable with
`
`direct infringement.” Id. Whether a single actor directed or controlled the acts of third parties is a
`
`question of fact. Id. And there is no per se rule against the admissibility of expert opinion on the
`
`issue of direction and control. See BorgWarner, Inc. v. Honeywell Int'l, Inc., 750 F. Supp. 2d 596,
`
`608 (W.D.N.C. 2010) (denying motion to exclude expert’s direction-and-control opinion); In re
`
`Katz Interactive Call Processing Pat. Litig., No. 07ML01816BRGKFFMX, 2008 WL 11411829,
`
`at *2 (C.D. Cal. Oct. 8, 2008) (same).
`
`Whether an accused infringer controls a third-party may “necessarily [be] a technical issue
`
`on which expert testimony is proper.” Datatreasury Corp., 2010 U.S. Dist. LEXIS 110659, at *23.
`
`And this may be the case even when, as here, the expert’s testimony is based in part on “the
`
`technical aspects of the agreements” between the alleged infringer and the third-parties under its
`
`alleged control. Id. at *25.
`
`Datatreasury Corp. is particularly instructive on this point. In Datatreasury Corp., the
`
`plaintiff accused a pair of banks of jointly infringing on patents related to check-imaging
`
`technology, asserting that third parties performed the infringing steps under the “direction and
`6
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 8 of 15
`
`control” of the bank defendants. See id. at *17, 22. The plaintiff filed a Daubert motion seeking to
`
`bar the defendants’ experts from expressing their opinion that the bank defendants did not direct
`
`or control the conduct of the third parties. Id. at *17. The plaintiff argued that the defendants’
`
`experts “intend[ed] to give lay interpretation of certain agreements and contracts, which would be
`
`confusing and misleading to the jury.” Id. at *19. According to the plaintiffs, the defendants’
`
`technical experts lacked the education and training to “opine on direction and control issues.” *19-
`
`20.
`
`The Eastern District of Texas rejected this argument, agreeing with the defendants that
`
`their ability “to control the third-party systems is necessarily a technical issue on which expert
`
`testimony is proper.” Id. at 23. The court reasoned that determining whether the bank defendants
`
`were capable of controlling the third party’s systems and actions necessarily required technical
`
`testimony about the systems in question and the interactions between them. Furthermore, other
`
`cases decided in the wake of the Federal Circuit’s decision in BMC Resources, 498 F.3d 1373,
`
`“demonstrate[d] that questions of direction and control are not divorced from the underlying
`
`technology at issue.” Id. (discussing TGIP, Inc. v. AT&T Corp., 527 F. Supp. 2d 561 (E.D. Tex.
`
`2007) and Global Patent Holdings, LLC v. Panthers BRHC LLC, 586 F. Supp. 2d 1331, 2008 WL
`
`3833219 (S.D. Fla. 2008)). Accordingly, the court held that the expert’s testimony regarding
`
`“direction and control has a valid connection to the pertinent inquiry of joint infringement” because
`
`the experts had “reviewed the technical aspects of the agreements” and they possessed the
`
`background necessary to opine on those issues. Id. at 25.1
`
`1 Although the court in Datatreasury Corp held that the testimony was generally admissible, the
`court instructed the experts to refrain from offering “ultimate legal conclusions regarding direction
`and control,” as such conclusions “are not a proper subject of testimony by a technical expert.” Id.
`
`7
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 9 of 15
`
`This Court should join the Eastern District in permitting expert opinion related to the issue
`
`of joint infringement when the question is necessarily technical in nature. As in Datatreasury
`
`Corp., where there was a question about the relationship between the defendants’ systems and
`
`those operated by the third parties, this case raises questions regarding the relationship between
`
`Google’s Cast SDK and the software of third parties that are required to implement (and not
`
`modify) Google’s code in order to provide cast functionality. Dr. Almeroth’s opinion—that the
`
`accused functionalities are carried out by Google code that is required both technically and legally
`
`to be incorporated into third-party apps—will therefore be helpful to the jury in resolving this
`
`question.
`
`Google’s reliance on Sprint Communications Co. LP v. Charter Commc’ns, Inc., No. CV
`
`17-1734-RGA, 2021 WL 982732 (D. Del. Mar. 16, 2021) is misplaced. For one, the issue of
`
`direction and control in this case is, as it was in Datatreasury Corp., necessarily technical in nature
`
`due to the relationship between Google’s code libraries and the software of the third-party
`
`developers who implement it. There is no indication that the evidence of direction and control in
`
`Sprint Communications was similarly technical. Moreover, whereas the expert in Sprint
`
`Communications appears to have opined on the legal duties of the alleged infringers, Dr. Almeroth
`
`does no such thing. Rather, he cites the terms, which are themselves highly technical in nature and
`
`used as a basis for Google’s technical control, as circumstantial evidence of Google’s direction
`
`and control over third parties. Together with evidence related to the technology itself, the evidence
`
`at *25-26. It does not appear this was required under the Federal Rules of Evidence. See Fed. R.
`Evid. 704(a) (“An opinion is not objectionable just because it embraces an ultimate issue.”).
`Indeed, in the context of a patent case, experts routinely testify regarding the ultimate issues of
`infringement and invalidity, and the court offered no explanation why that should not be the case
`with respect to the issue of joint infringement, particularly when, as here, the question turns on
`highly technical facts.
`
`8
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 10 of 15
`
`supports Dr. Almeroth’s opinion that the infringing conduct is attributable to Google because it
`
`provides third-party developers with the code necessary to carry out the accused functionalities
`
`and obliges them to use it. Ultimately, Google’s “arguments for exclusion go primarily to weight
`
`rather than admissibility.” See Datatreasury Corp., 2010 U.S. Dist. LEXIS 110659, at *25.
`
`B. The Court should ignore Google’s end-user strawman.
`
`In a further effort to undermine Dr. Almeroth’s joint-infringement opinion, Google argues
`
`that his opinion is irrelevant because the asserted indicia of direction and control restrict the
`
`conduct of the third-party developers rather than end users, who must initiate the infringing steps
`
`from a personal computing device. This is nonsense.
`
`As an initial matter, this argument presumes that a defendant who supplies infringing
`
`software (while maintaining ownership and all associated rights to that software) is immune to
`
`liability merely because a third-party must first power on the computing device housing that
`
`software and/or click a button before the patented steps inevitably execute according the infringer’s
`
`design. Unsurprisingly, Google cites no authority supporting such a proposition.
`
`More fundamentally, Google’s argument fails because it attacks a theory of liability that
`
`Touchstream has never made. Touchstream does not contend that Google directs or control’s the
`
`user’s behavior. To do so would serve no purpose, because the users do not engage in any of the
`
`patented steps. Rather, what Dr. Almeroth and Touchstream argue is that the accused products
`
`perform every step of the patented claims and, to the extent this process is initiated by way of an
`
`end user’s engagement with a third-party developer’s app, the performance is attributable to
`
`Google because the steps unfold under Google’s direction and control. Ex. A, Almeroth
`
`Infringement Report ¶\ 128. (“The software provided and maintained by Google performs all
`
`claimed steps.”).
`
`4878-0497-1593 v4
`
`9
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 11 of 15
`
`Google’s effort to undermine Dr. Almeroth’s joint-infringement opinion is baseless. His
`
`opinion is legally permissible, rooted in the technical nature of the accused functionality, and will
`
`be helpful in resolving an important factual question. Accordingly, the jury should be permitted to
`
`hear it.
`
`regarding
`opinion
`C. Dr. Almeroth’s
`nonobviousness well supported.
`
`secondary
`
`considerations
`
`of
`
`Google asks the Court to exclude Dr. Almeroth’s opinions related to secondary
`
`considerations of nonobviousness on the grounds that he fails to show a nexus between the
`
`evidence he cites and Touchstream’s patented technologies. This request suffers from three
`
`defects, each of them fatal.
`
`First, while it is true that evidence of a product’s commercial success is only significant if
`
`there is a nexus between the claimed invention and the commercial success, the nexus is presumed
`
`“when the successful product is the invention disclosed and claimed in the patent.” Ormco Corp.
`
`v. Align Tech., Inc., 463 F.3d 1299, 1311–12 (Fed. Cir. 2006). Here, Google asserts that Dr.
`
`Almeroth failed to show a nexus between the products Touchstream developed for Quadriga and
`
`Hewlett-Packard. But Dr. Almeroth examined the inventor’s prototypes in detail—including by
`
`preparing claim charts—and the core functionality of the commercial products was the same as
`
`that in those prototypes. See, e.g., Ex. D, Almeroth ‘289 Conception Chart; Ex. C, Declaration of
`
`David Strober, 1-2. Further, the inventor himself—who developed the prototypes mapped by Dr.
`
`Almeroth and was the chief technologist for the commercial products—contends that the
`
`commercial products include the same core functionality and architecture as his prototypes, and
`
`that the commercial products practice the patents. Ex. C, Declaration of David Strober 1-2.
`
`Consequently, there is ample evidence from which a jury could conclude that the Quadriga and
`
`10
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 12 of 15
`
`Hewlett-Packard apps were commercial embodiments of the asserted claims. As a result, the
`
`requisite nexus must be presumed, and it is for Google to show that the products’ success is
`
`attributable to features not disclosed in the patents. J.T. Eaton & Co. v. Atl. Paste & Glue Co.,
`
`106 F.3d 1563, 1571 (Fed. Cir. 1997). Google does not so much as acknowledge this burden.
`
`Second, Google fails to meaningfully address the commercial success of its own infringing
`
`products. In its motion, Google faults Dr. Almeroth for citing the initial success of its Chromecast
`
`product, reasoning that this success cannot serve as evidence of nonobviousness because the
`
`original Chromecast ran on the Cast v1 protocol while his infringement analysis is “limited to the
`
`separate Cast v2 protocol.” See Motion at 11-12. Not so.
`
`As an initial matter, Google’s argument is factually inaccurate. Google’s technical 30(b)(6)
`
`witness testified that the Cast V1 protocol “is what we would now refer to as DIAL,” Ex. E, Dep.
`
`Micah Rupersburg II, 31:12-14, and Dr. Almeroth specifically mapped Google’s DIAL
`
`implementations to the asserted claims, see, e.g., Ex. B, Almeroth Invalidity Rebuttal, ¶¶ 299, 302,
`
`305, 308, 311.2 Consequently, Dr. Almeroth’s report does establish a nexus between the
`
`commercial success of the original Chromecast and Touchstream’s patented technology.
`
`Regardless, Dr. Almeroth’s Cast V2 analysis is sufficient on its own to show the nexus.
`
`Google implemented Cast V2 shortly after the initial launch. Ex. __, Almeroth Infringement
`
`Report, ¶ 498; Ex. F, Van Der Staay Dep. at 63:11-64:18 (Cast V1 is “
`
`YouTube and
`
` apps used Cast V1, Cast V2 was released in 2013, and “
`
`only the
`
`
`
`2 To the extent there is a lack of evidence on salient differences between Cast V1 and Cast V2,
`it is because Google’s 30(b)(6) witnesses—who were specifically designated to testify on this
`topic—lacked such knowledge. Ex. E, Dep. Micah Rupersburg II at 41:24-42:10 (responding “I
`don’t know” when asked about DIAL messaging in Cast V1); Ex. F, Van Der Staay Dep. at 179:24-
`180:1 (“I cannot tell you the details of how v1 worked beyond the fact that it leveraged DIAL.”).
`11
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 13 of 15
`
`devices utilizing V1 “
`
`”); 180:5-16 (“
`
`” and the only
`
`
`
`.”). Google simply ignores the fact that Dr. Almeroth cited evidence of
`
`commercial success of V2 extending from just after launch to the present. See Ex. __, Almeroth
`
`Infringement Report, ¶ 507 (noting that had Google sold 26 million Chromecast devices by 2016
`
`and 100 million Chromecasts and cast-enabled TVs by 2020). Google does not address why these
`
`later sales, which occurred in the era of Cast v2, are not evidence of commercial success.
`
`Finally, even if Google’s arguments were accurate (they are not), there would still be
`
`substantial objective evidence of nonobviousness. Dr. Almeroth’s report cites licensing deals with
`
`Mash in Music Pty Ltd, and Fetch Interactive Television LLC and industry praise in the form of
`
`Touchstream’s win at New York’s Techweek conference. Ex. A, Almeroth Infringement Report,
`
`§ 507. He also opines regarding the unmet need filled by the innovations disclosed in
`
`Touchstream’s patents and Google’s apparent copying of those innovations. On this evidence,
`
`Google’s motion is thunderously silent.
`
`Because Google’s argument misrepresents the facts and ignores applicable law, the Court
`
`should deny the motion as it relates to Dr. Almeroth’s testimony regarding secondary
`
`considerations of nonobviousness.
`
`IV. CONCLUSION
`
`Almeroth’s opinions are legally sound, supported by the evidence, and will be helpful to
`
`the jury. Accordingly, the Court should deny Google’s motion and allow the jury to hear them.
`
`12
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 14 of 15
`
`Dated: January 12, 2023
`
`Respectfully submitted,
`
`SHOOK, HARDY & BACON L.L.P.
`
`
` /s/ Ryan D. Dykal
`Counsel for Plaintiff Touchstream
`
`Gary M. Miller, pro hac vice
`Justin R. Donoho, pro hac vice
`111 S. Wacker Drive, Suite 4700
`Chicago, IL 60606
`(312) 704-7700
`Fax: 312-558-1195
`Email: gmiller@shb.com
`Email: jdonoho@shb.com
`
`Michael W. Gray (TX Bar No. 24094385
`Fiona A. Bell (TX Bar No. 24052288)
`Andrew M. Long (TX Bar No. 24123079)
`600 Travis Street, Suite 3400
`Houston, TX 77002
`Phone: (713) 227-2008
`Fax: (713) 227-9508
`mgray@shb.com
`fbell@shb.com
`amlong@shb.com
`
`Philip A Eckert, pro hac vice
`Ryan D. Dykal, pro hac vice
`B. Trent Webb, pro hac vice
`Jordan T. Bergsten, pro hac vice
`SHOOK, HARDY & BACON L.L.P.
`2555 Grand Boulevard
`Kansas City, MO 64108
`Phone: (816) 474-6550
`Fax: (816) 421-5547
`peckert@shb.com
`rdykal@shb.com
`bwebb@shb.com
`jbergsten@shb.com
`
`Counsel for Plaintiff Touchstream
`Technologie, Inc.
`
`13
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`

`

`Case 6:21-cv-00569-ADA Document 169 Filed 01/19/23 Page 15 of 15
`
`CERTIFICATE OF SERVICE
`
`Pursuant to the Federal Rules of Civil Procedure and the Local Rules for the Western
`
`District of Texas, I hereby certify that on the 12th day of January, 2023, I served the foregoing to
`
`the following counsel of record via the e-mail addresses shown below:
`
`Michael E. Jones
`Patrick C. Clutter
`Shaun William Hassett
`Potter Minton PC
`110 N College, Suite 500
`Tyler, TX 75702
`Tel: 903-597-8311
`Email: mikejones@potterminton.com
`Email: patrickclutter@potterminton.com
`Email: shaunhassett@potterminton.com
`
`Evan M. McLean, pro hac vice
`Michael C. Hendershot, pro hac vice
`Tharan Gregory Lanier, pro hac vice
`Jones Day
`1755 Embarcadero Road
`Palo Alto, CA 94303
`Tel: (650) 739-3939
`Email: emclean@jonesday.com
`Email: mhendershot@jonesday.com
`Email: tglanier@jonesday.com
`
`Edwin O. Garcia, pro hac vice
`Jones Day
`51 Louisiana Avenue, N.W.
`Washington, DC 20001
`Tel: (202) 879-3695
`Email: edwingarcia@jonesday.com
`
`14
`
`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
`
`4878-0497-1593 v4
`
`