Case 6:21-cv-00569-ADA Document 195 Filed 01/26/23 Page 1 of 14
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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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`Civil Case No. 6:21-cv-569-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANT GOOGLE LLC’S MOTIONS IN LIMINE
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`Abbreviation
`Touchstream
`Google
`Asserted Patents
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`Asserted Claims
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`POSA
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`TABLE OF ABBREVIATIONS
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`Definition
`Touchstream Technologies, Inc.
`Google LLC
`U.S. Patent Nos. 8,356,251 (the “ʼ251 Patent”), 8,782,528 (the
`“ʼ528 Patent”), and 8,904,289 (the “ʼ289 Patent”)
`Claims 1, 5, and 7-9 of the ʼ251 Patent, claims 1-5, 8, 11, 12, 14,
`and 28 of the ʼ528 Patent, and claims 1, 2, 6, 7, and 8 of the ʼ289
`Patent
`Person Of Ordinary Skill In The Art
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`*All emphasis added unless stated otherwise
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`Google respectfully seeks an order precluding Touchstream, their counsel, and witnesses
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`from mentioning, referring to, or offering any evidence, testimony, or argument relating to any of
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`the following matters within the hearing of any member of the jury during voir dire or at any time
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`during trial.
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`1.
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`Google’s MIL No. 1: Exclude reference to Google’s overall size, wealth, profits, or
`revenue.
`Based on responses to motions for summary judgment, depositions, and expert reports, it
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`appears that Touchstream will attempt to make references about Google’s overall revenues and
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`state that Google is a large and wealthy corporation, or a monopolist. Dkt. 129-1 at 12 (stating
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`Google is a “multi-billion dollar global technology company”), 13 (stating in 2020 Google’s parent
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`company “generated almost
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` in revenue” and “YouTube’s advertising revenue
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`increased from
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` in 2017 to
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` in 2021”). Touchstream maintains that Google’s
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`size, wealth, and “revenues” or profits, and generally contend that such “testimony is relevant and
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`admissible.” Dkt. 155 at 25-26. But Touchstream should be precluded from making such
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`references.
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`Evidence of a defendant’s net worth and wealth is “totally irrelevant to the issue of
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`compensatory damages.” Burke v. Deere & Co., 6 F.3d 497, 513 (8th Cir. 1993). Indeed,
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`arguments regarding a party’s wealth, size, and corporate status in an effort to bias the jury have
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`been found to constitute prejudicial error. See Draiper v. Airco, Inc., 580 F.2d 91, 95 (3d Cir.
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`1978) (granting a new trial in part because “[c]ounsel repeatedly made reference to the wealth of
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`the defendants in contrast to the relative poverty of the plaintiff”). References to a party as a
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`“wealthy, thriving, large company” and references to a company’s finances and size have been
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`held irrelevant and excluded at the motion in limine stage. Cooper Tire and Rubber Co. v. Farese,
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`2008 WL 5382416, at *3 (N.D. Miss. Dec. 19, 2008).
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`Nor should Touchstream be permitted to compare Google’s size and net worth to that of
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`Touchstream or the inventor of the patent-in-suit. Such argument would be completely irrelevant
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`to Touchstream’s allegations or its compensatory damages claims. As a bald attempt to appeal to
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`wealth and class prejudice, it would also significantly prejudice Google. Similarly, Touchstream
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`should be precluded from referring to the total size and value of Google or any of its divisions and
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`related entities because presentation of a defendant’s overall size, market value, revenues, and
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`profits “skew[s] the damages horizon for the jury, regardless of the contribution of the patented
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`component.” Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1320 (Fed. Cir. 2011). Indeed,
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`courts, including this one, routinely rule that references to a company’s value and size are
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`irrelevant and excluded in limine.1 The Court should therefore prohibit any reference to the size
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`and value of Google or any of its divisions and related entities.
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`Additionally, any reference to Google’s ability to afford attorneys, pay experts, or use its
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`size to avoid paying license fees does not affect the claims or defenses here and is “of [no]
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`consequence in determining the action.” FRE 401. Touchstream can only deploy such arguments
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`and evidence to evoke an improper “David versus Goliath” narrative that Texas courts routinely
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`forbid,2 and this Court has also recently prohibited. See ESW Holdings, Inc. v. Roku, Inc., No.
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`1 Freshub, Inc. v. Amazon.com, Inc., No. 6:21-cv-511-ADA, Dkt. No. 222 at 2 (W.D. Tex. June
`13, 2021) (granting MIL excluding evidence of “Amazon’s total profits and overall financial
`success”); ESW v. Roku, Inc., No. 6:19-cv-44-ADA, Dkt. 150 at 2 (W.D. Tex. Mar. 23, 2021)
`(granting MIL directed to “Roku’s overall revenues or profits (except as needed to establish royalty
`base(s) for damages purposes), or implied or express suggestion that sought damages is relatively
`small compared to Roku’s overall revenues or profits”); VLSI Tech. LLC v. Intel Corp., No. 6:21-
`cv-0057-ADA, Dkt. No. 508, at 5 (W.D. Tex. Feb. 19, 2021) (granting MIL to exclude “references
`to Intel and processor industry financial performance, financial metrics, and prior Intel litigation
`settlements”).
`2 See SEVEN Networks, LLC v. Google LLC, No. 2:17-cv-442-JRG, Dkt. 582 at 35:10–36:4,
`38:11–19 (E.D. Tex. Feb. 18, 2018) (“I want to make it real clear, neither of these trials are going
`to be about David versus Goliath.”); Intell. Ventures II LLC v. FedEx Corp., No. 2:16-cv-00980-
`JRG, Dkt. 505 at 6–7 (E.D. Tex. Apr. 26, 2018) (excluding reference to “denigrate Defendants by
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`6:19-cv-44-ADA, Dkt. 150 at *2 (W.D. Tex. 2021) (preventing “reference to [the defendant’s]
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`overall revenue or profits (except as needed to establish royalty base(s) for damages purposes), or
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`implied or express suggestion that sought damages is relatively small compared to [the
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`defendant’s] overall revenues or profits.”). The Court should therefore prohibit comparison of the
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`size or value of the parties.
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`2.
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`Google’s MIL No. 2: Exclude the unsupported opinion of Mr. Chandler concerning
`ad revenue and Google’s business model.
`Based on discovery and motion practice, it appears that Touchstream will seek to make
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`broad references to not only Google’s total revenues, but also revenue streams that their own expert
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`concedes he does not rely on to calculate his proposed damages award. Touchstream should be
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`precluded from making any reference to revenues streams that Mr. Chandler never ties to his
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`damages opinion. As explained in Google’s motion to exclude certain opinions of Mr. Chandler
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`(Dkt. 129), his expert report opines about a revenue-based approach and a lifetime value approach
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`to damages for which he never offers any conclusions. Dtk. 129 at 19-22. Yet, Mr. Chandler was
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`unequivocal that he was unable to calculate a damages award under either approach. Dkt. 129-2
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`at 26:21-27:18; 32:17-22, 33:10-16. Indeed, Chandler admits that his revenue-based approach is
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`unreliable because he was unable to apportion the revenue to the value of the invention, and he
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`does not use any revenue data as an input into his per unit reasonable royalty analysis, the only
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`approach in which he renders an opinion. Any reference to these approaches from which Mr.
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`Chandler concedes he could not calculate any damages award would only serve to confuse and
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`mislead the jury. FRE 403; ESW v. Roku, Inc., No. 6:19-cv-44-ADA, Dkt. 150 at 2 (W.D. Tex.
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`March 23, 2021) (granting MIL directed to “Roku’s overall revenues or profits (except as needed
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`painting a David and Goliath scenario”); Rogers v. Medline Indus., Inc., 2019 WL 402361, at *4
`(S.D. Miss. Jan. 31, 2019) (excluding evidence of a “corporation’s size or wealth” and precluding
`reference to a “David and Goliath situation”).
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`to establish royalty base(s) for damages purposes), or implied or express suggestion that sought
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`damages is relatively small compared to Roku’s overall revenues or profits”).
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`3.
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`Google’s MIL No. 3: Exclude reference that any Touchstream product practiced the
`Asserted Patents and any alleged industry praise, including the untimely and
`unqualified opinion of Mr. Strober that Touchstream products embodied the patents
`Based on Touchstream’s response to motion practice, it appears that Touchstream intends
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`to introduce argument or evidence of their own products allegedly practicing the Asserted Patents,
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`and purported evidence of industry praise reliant on the same. Indeed, in responding to Google’s
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`motion for to exclude certain opinions of Dr. Almeroth, Touchstream filed a declaration from
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`Mr. Strober (the named inventor) contending that some of the Touchstream apps were commercial
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`embodiments of the Asserted Patents. Dkt. 157-3. Touchstream has never explained or disclosed
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`how its products allegedly practice the claimed inventions, which is unfairly prejudicial to Google.
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`And Mr. Strober is not qualified as an expert in this case, so his eleventh-hour declaration making
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`conclusory allegations that some of the Touchstream apps embody the patents is untimely and
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`unfounded. Without any explanation, in either fact or expert discovery, of how Touchstream’s
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`products allegedly practice the asserted claims, evidence purporting to show industry praise for
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`Touchstream’s products should be excluded as not relevant and more prejudicial than probative.
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`See FRE 401, 403; see also Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1539 (Fed. Cir.
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`1983) (with “[n]o evidence [in the] record establish[ing]” that product was covered by patent
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`claims, it “cannot therefore be given weight” in respect to secondary considerations). Moreover,
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`when a party fails to provide information or identify a witness as required by Rule 26(a) or (e) of
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`the Federal Rules of Civil Procedure, the party is not allowed to use that information or witness to
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`supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified
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`or is harmless. Fed. R. Civ. P. 37(c)(1).
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`4.
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`Google’s MIL No. 4: Exclude reference to non-US use, activity, or sale revenue.
`Based on Touchstream’s responses to Google’s motions concerning summary judgment
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`and to exclude the foreign damages opinions of Mr. Chandler, it is clear that Touchstream intends
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`to raise foreign damages at trial. Dkt. 158 at 30-35; Dkt. 155 at 25. Touchstream should be
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`precluded from making any references to activities or devices that allegedly perform the accused
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`method outside of the United States. As this Court has already held, “infringement of a method
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`claim requires that each of the claimed steps be performed within the United States,” and “the
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`foreign activities or products that allegedly infringe the accused method abroad are not sold, used,
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`or imported into the United States.” Dkt. 146 at 3. Any reference to devices or revenues outside
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`of the United States has no relevance to this case and would only serve to attempt to inflate the
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`damages. Indeed, consistent with this Court’s orders (Dkt. 120 and Dkt. 146) and the detailed
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`analysis therein, Google has moved for summary judgment on this issue, and out of an abundance
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`of caution, similarly moves to preclude any reference to foreign devices or damages base on
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`alleged non-US “infringement” of the Asserted (method) Claims.
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`5.
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`Google’s MIL No. 5: Exclude any reference, suggestion, or argument regarding the
`fact, settlement, outcome of or verdict or result in any other litigation, legal
`proceeding, regulatory, governmental or other investigation involving the other
`party.
`Based on recent correspondence, discovery, and motion practice, it appears that
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`Touchstream is expecting to raise settlements or outcomes of other litigation concerning unrelated
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`legal proceedings during trial. For instance, Mr. Chandler makes repeated references in his report
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`to agreements that he merely posits could be relevant, though he has no basis, technical or
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`otherwise, to opine on them. Dkt. 129-1 at 76 n.284. Mr. Chandler generally references
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`agreements between Google and
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`, but
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`these agreements are not evidence in this case and there is nothing tying any of those agreements
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`to this case in any way. Dkt. 129 at 24. But such references have no bearing to any of the claims
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`in this case and risk unfair prejudice, confusing the issues, and/or misleading the jury. See Fed.
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`R. Evid. 402, 403; Mars, Inc. v. TruRX LLC, 2016 WL 4055675 at *2-3 (E.D. Tex. 2016)
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`(precluding references to “any pending or prior litigation other than this case involving either of
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`the parties”). Courts, including this one, routinely exclude evidence of other litigation to prevent
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`prejudice and confusion. Touchstream should thus be precluded from presenting evidence or
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`making any reference to other law legal proceedings involving Google. Mobile Telecomms. LLC
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`v. ZTE (USA) Inc 2016 WL 8260584, at *2 (E.D. Tex. 2016) (excluding references or evidence
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`“regarding unrelated litigations, investigations, or accusations involving the parties or their
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`affiliates or principles”). Touchstream should also be precluded from making references to any
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`settlement discussions between the parties or any settlements that are not in evidence in this case,
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`including any between Google and any unrelated third parties. See VLSI Tech. LLC v Intel Corp.,
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`No. 6:21-cv-0057-ADA, Dkt. No. 508, at 5 (W.D. Tex. Feb. 19, 2021) (granting MIL to exclude
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`“references to . . . prior Intel litigation settlements”).
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`6.
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`Google’s MIL No. 6: Exclude any reference that of Google being a “monopoly”,
`“monopolist”, “anti-competitive” or other such pejorative terms, or that Google is
`repeatedly accused of IP infringement, does not respect IP rights, or other such
`matters.
`Based on expert reports, depositions, and recent correspondence it appears that
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`Touchstream might attempt to refer to Google “monopoly” or “anti-competitive” or that it is
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`repeatedly accused of IP infringement. For example Mr. Chandler’s expert report states that
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`arrangements between Google and app developers and content providers “are so profitable that
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`[they] have led to antitrust challenges by numerous state attorney generals.” Dkt. 129-1 at 52.
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`Touchstream should be precluded from using pejorative expressions or labels concerning Google.
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`Arguments related to Google’s alleged market power or dominance are generally not
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`relevant to any issue in this case, including damages. Thus, pejorative labels and accusations about
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`Google’s alleged power should be excluded under FRE 403 as misleading and highly prejudicial
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`attempt to cast Google in an unfavorable light, and to “invite an emotion[al] response from the
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`jury[.]” DataTreasury Corp. v. Wells Fargo & Co., No. 2:06-CV-72 DF, 2010 WL 11538713, at
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`*14 (E.D. Tex. 2010) (excluding unfavorable references to defendant unrelated to disputed issues).
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`Failure to exclude this evidence would also result in a time consuming, confusing, and unnecessary
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`sideshow. Accordingly, courts in other patent cases where Google is a party have granted similar
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`MILs to exclude “[t]estimony and argument . . . suggest[ing] that Google behaves as a monopoly
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`or engages in unlawful or anticompetitive practices.”3 The same exclusion should apply here.
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`Moreover, any accusation that Google does not respect intellectual property rights would be both
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`baseless and irrelevant to the question of whether the Accused Products infringe any valid claim.
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`FRE 401-404. The Court in Parthenon Unified Memory Architecture LLC v. Apple Inc., No. 2:15-
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`cv-621-JRG-RSP, 2016 WL 7743510 (E.D. Tex. Sept. 21, 2016), granted a similar motion and
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`excluded “evidence, testimony, or argument during trial referencing statements that suggest Apple
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`does not respect intellectual property.” Id. at *3; see also SimpleAir, Inc. v. AWS Convergence
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`Techs., Inc., No. 2:09-cv-289, 2012 WL 13207358, at *1 (E.D. Tex. Apr. 3, 2012). Touchstream
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`should likewise be prohibited from suggesting Google or any of its affiliated entities undermine
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`the patent system, do not respect patent rights, or otherwise engage in a pattern of alleged
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`misconduct relating to patents or intellectual property.
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`7.
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`Google’s MIL No. 7: Exclude any reference concerning Google’s practices with
`respect to data collection, privacy, or information security.
`Based on the expert reports and depositions, it appears that Touchstream intends to make
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`references to Google’s practices with respect to privacy or information security. For instance,
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`Mr. Chandler’s report states that “
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`3 Skyhook Wireless, Inc. v. Google Inc., No. 10-11571-RWZ, Dkt. 619, at 11-12 (D. Mass. 2015).
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`.” Dkt. 129-1 at 49. Touchstream should be
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`precluded from making these irrelevant and prejudicial accusations suggesting that Google does
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`not respect, or intrudes on the privacy of its customers, users of its products and services, or the
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`public. Such accusations have no relevance to any issue in this case under FRE 401 and 402 and
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`should also be excluded under FRE 403 as a highly prejudicial attempt to cast Google in an
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`unfavorable light, and to “invite an emotion[al] response from the jury[.]” DataTreasury, 2010
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`WL 11538713, at *14. Failure to exclude this evidence would also result in a time-consuming,
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`confusing, and unnecessary sideshow. Courts in other patent cases where Google is a party have
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`granted similar MILs to exclude arguments concerning “alleged invasions of privacy” by Google
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`as “irrelevant and prejudicial.” Skyhook, Dkt. 619, at 11-12. The same exclusion should apply here.
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`8.
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`Google’s MIL No. 8: Exclude any reference about alleged deficiencies in or the
`conduct of discovery in this case.
`Based on correspondence, the depositions, and the expert reports, it appears that
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`Touchstream may attempt to argue to the jury that Google’s document production during discovery
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`was incomplete. For instance, Mr. Chandler’s report refers to “missing information from Google’s
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`productions,” Dkt. 129-1 at 102, contending that “Google has made an incomplete production of
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`its relevant revenue.” Dkt. 129-1 at 333. But such unfounded assertions concerning any perceived
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`missing information during discovery would be for this Court to decide, not a jury. The sole
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`motivation for making these suggestions to a jury would be to confuse and bias the jury against
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`Google. Any such allegations are baseless and wholly irrelevant to resolution of the issues in this
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`lawsuit, and should therefore be excluded under Federal Rule of Evidence 402. In addition,
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`Touchstream’s unfounded assertions would be highly prejudicial to Google and should be
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`excluded under Federal Rule of Evidence 403. Such unsubstantiated accusations would only
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`confuse and bias the jury by potentially leading them to believe that Google has attempted to
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`conceal evidence or otherwise bias them against Google. Accordingly, Touchstream should be
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`precluded from introducing evidence or making arguments related to any conduct during the
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`discovery process.4
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`9.
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`Google’s MIL No. 9: Exclude any reference relating to data retention policy and
`practices.
`Based on correspondence and Touchstream’s motion for summary judgment, it appears
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`that Touchstream may attempt to argue that it was unable to identify certain evidence, including
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`evidence of Google’s specific intent to infringe, because of Google’s data-retention policies and
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`practices and related lack of discoverable information as a result of these policies and practices.
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`See, e.g., Dkt. 158 at 23. Touchstream should be precluded from doing so. During discovery,
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`Touchstream did not allege that Google should have reasonably foreseen litigation triggering
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`document preservation documents during the periods where documentation and data were deleted
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`according to Google’s data-retention policies and practices. Without such an obligation, Google
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`had a “legitimate business interest [in] eliminating unnecessary documents and data.” Hynix
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`Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336, 1345 (Fed. Cir. 2011). Thus, references to
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`such discovery issues should be excluded because they are not relevant to any issues to be tried to
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`the jury. FRE 401, 402; see Personalized Media Commc’ns, LLC v. Apple, Inc., No. 2:15-cv-
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`01366-JRG-RSP, Dkt. 510 at 10 (E.D. Tex. Mar. 3, 2021) (precluding plaintiff “from Presenting
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`Evidence, Testimony, or Argument Regarding Discovery Disputes or Allegedly ‘Missing’
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`Discovery in this Case”); Orchestrate HR, Inc. v. Trombetta, No. 3:13-CV-2110-KS, 2017 WL
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`273669, at *9 (N.D. Tex. Jan. 20, 2017) (precluding reference to discovery disputes because they
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`4. Miller v. Ford Motor Co., 2004 WL 4054843, at *10 (M.D. Fla. July 22, 2004) (granting
`defendants’ motion in limine to exclude reference or evidence regarding Defendants’ alleged
`misuse of discovery practices); Blue Cross & Blue Shield, Inc. v. Philip Morris, Inc., 2000 WL
`1805359, at *2 (E.D.N.Y. Dec. 11, 2000) (granting defendants’ motion in limine to exclude
`references to alleged discovery abuses)
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`“are not relevant to any issue to be decided by the jury”).
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`Further, any purported relevance of such discovery issues is far outweighed by the potential
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`for unfair prejudice and jury confusion. See Orchestrate, 2017 WL 273669, at *9 (“[A]ny
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`relevance [discovery issues] may have for impeachment purposes are substantially outweighed by
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`the risk of unfair prejudice.”); Brighton Collectibles, Inc. v. Marc Chantal USA, Inc., No. 06-CV-
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`1584 H (POR), 2009 WL 10674074, at *3 (S.D. Cal. Apr. 1, 2009) (finding that evidence regarding
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`the discovery process could paint one party “in a negative light,” and that the “prejudice would
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`clearly outweigh any probative value”). Indeed, allowing Touchstream to make reference to these
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`discovery issues would permit Touchstream to use its nearly decade-long delay in filing suit as a
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`sword to unfairly prejudice Google based on the “loss of records, destruction of evidence, [and]
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`fading memories” that naturally result from such a long delay. Cornetta v. United States, 851 F.2d
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`1372, 1378 (Fed. Cir. 1988). Such use would also confuse the jury by implying that Google’s
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`data-retention policies and practices represent an illegitimate business practice. Touchstream’s
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`references to such discovery issues should be excluded for these reasons as well.
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`Respectfully submitted,
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`By: /s/ Tharan Gregory Lanier
` Tharan Gregory Lanier
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`
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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
`Patrick C. Clutter
`TX State Bar No. 24036374
`E-mail: patrickclutter@potterminton.com
`102 N. College Ave., Suite 900
`Tyler, TX 75702
`Telephone:
` (903) 597-8311
`Facsimile:
` (903) 593-0846
`
`Attorneys for Defendant
`GOOGLE LLC
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`Dated: January 19, 2023
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who have consented to electronic service are
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`being served with a copy of this document via electronic mail on January 19, 2023. I also hereby
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`certify that all counsel of record who have consented to electronic service are being served with a
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`notice of filing of this document, under seal, pursuant to L.R. CV-5.2(e).
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`/s/ Michael E. Jones
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`Michael E. Jones
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`12
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`PUBLIC VERSION
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