Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 1 of 28
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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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`GOOGLE LLC’S RULE 59 MOTION FOR A NEW TRIAL
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`Civil Case No. 6:21-cv-569-ADA
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`JURY TRIAL DEMANDED
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`§§§§§§§§§§
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`Plaintiff,
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`v.
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`Defendant.
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 2 of 28
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`TABLE OF CONTENTS
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`Page
`TABLE OF AUTHORITIES ......................................................................................................... ii
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`TABLE OF ABBREVIATIONS .................................................................................................. iv
`TABLE OF EXHIBITS ................................................................................................................. v
`INTRODUCTION ............................................................................................................. 1
`LEGAL STANDARD ........................................................................................................ 1
`THAT ISSUE AND EVIDENCE ...................................................................................... 2
`Case To Imply That Google Copied Its Technology ............................................. 2
`Trial Was Highly Prejudicial To Google’s Defenses ............................................ 8
`IV. A NEW TRIAL ON DAMAGES IS WARRANTED ..................................................... 10
`Mr. Chandler Relied On A Noncomparable Agreement And License Fee ......... 10
`Mr. Chandler’s So-Called “Discounts” Were Plucked Out Of Thin Air ............. 16
`Flaws .................................................................................................................... 18
`A NEW TRIAL WITH “SERVER SYSTEM” CONSTRUED IS NECESSARY .......... 20
`THE JURY VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE ................ 20
`VII. CONCLUSION ................................................................................................................ 20
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`TOUCHSTREAM’S WILLFULNESS CASE MARRED THE TRIAL WITH
`PREJUDICIAL ERROR, WARRANTING A NEW TRIAL UNTAINTED BY
`
`A.
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`B.
`
`A.
`B.
`C.
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`Touchstream Prejudicially Leveraged A Legally Inadequate Willfulness
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`Touchstream’s Strategy To Pursue An Unmeritorious Willfulness Case At
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`Touchstream’s Billion-Dollar-Revenue Arguments Compounded The
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`I.
`II.
`III.
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`V.
`VI.
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`-i-
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 3 of 28
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`TABLE OF AUTHORITIES
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`Page
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`CASES
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`Allen Eng’g Corp. v. Bartell Indus., Inc.,
`299 F.3d 1336 (Fed. Cir. 2002)..................................................................................................9
`
`Apple, Inc. v. Wi-Lan, Inc.,
`25 F.4th 960 (Fed. Cir. 2022) ..................................................................................................10
`
`Bayer Healthcare LLC v. Baxalta Inc.,
`989 F.3d 964 (Fed. Cir. 2021)....................................................................................................2
`
`Callwave Commc’ns LLC v. AT&T Mobility LLC,
`No. 12-1701, 2014 WL 5363741 (D. Del. Jan. 28, 2014) .........................................................7
`
`Cham v. Station Operators, Inc.,
`685 F.3d 87 (1st Cir. 2012) ....................................................................................................8, 9
`
`EcoFactor, Inc. v. Google LLC,
`No. 6:20-cv-00075-ADA, Dkt. No. 236 (W.D. Tex. 2022) .......................................................7
`
`Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC,
`927 F.3d 1292 (Fed. Cir. 2019)................................................................................................12
`
`ESW Holdings, Inc. v. Roku, Inc.,
`No. 6-19-CV-00044-ADA, 2021 WL 3742201 (W.D. Tex. Aug. 24, 2021) ........................1, 3
`
`Foradori v. Harris,
`523 F.3d 477 (5th Cir. 2008) .....................................................................................................2
`
`LaserDynamics, Inc. v. Quanta Computer, Inc.,
`694 F.3d 51 (Fed. Cir. 2012)........................................................................................15, 16, 17
`
`Lucent Techs., Inc. v. Gateway, Inc.,
`580 F.3d 1301 (Fed. Cir. 2009)................................................................................................10
`
`MLC Intell. Prop., LLC v. Micron Tech., Inc.,
`10 F.4th 1358 (Fed. Cir. 2021) ..........................................................................................12, 15
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`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)................................................................................................20
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`-ii-
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 4 of 28
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`Omega Patents, LLC v. CalAmp Corp.,
`13 F.4th 1361 (Fed. Cir. 2021) ..........................................................................................11, 13
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`ResQNet.com, Inc. v. Lansa, Inc.,
`594 F.3d 860 (Fed. Cir. 2010)..................................................................................................11
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`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`14 F.4th 1323 (Fed. Cir. 2021) ..................................................................................................2
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`Uniloc USA, Inc. v. Microsoft Corp.,
`632 F.3d 1292 (Fed. Cir. 2011)........................................................................................ passim
`
`VirtnetX, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308 (Fed. Cir. 2014)................................................................................................10
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`Wordtech Sys., Inc. v. Integrated Networks Sols., Inc.,
`609 F.3d 1308 (Fed. Cir. 2010)................................................................................................11
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`OTHER AUTHORITIES
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`Fed. R. Civ. P. 59 .............................................................................................................................1
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`-iii-
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 5 of 28
`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 5 of 28
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`
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`TABLE OF ABBREVIATIONS
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`Abbreviation
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`Definition
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`Touchstream
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`Touchstream Technologies, Inc.
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`Google
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`251 patent
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`°528 patent
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`°289 patent
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`Google LLC
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`U.S. Patent No. 8,356,251 (PTX-865)
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`USS. Patent No. 8,782,528 (PTX-885)
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`U.S. Patent No. 8,904,289 (PTX-883)
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`asserted patents
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`the ’251 patent, the ’528 patent, and the ’289 patent
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`asserted claims
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`claims | and 8 of the ’251 patent, claims 1 and 14 of the ’528
`patent, and claims 1 and 2 of the ’289 patent
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`CES
`ConsumerElectronics Show
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`GTS
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`Shodogg
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`Quadriga
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`YouTube Remote and Leanback with Google TV System (JTX-1;
`JTX-3; JTX-21; JTX-51; JTX-63; DTX-118A; DTX-120; DTX-
`632; Tr. 892:19-904:3 (Levai))
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`Touchstream’s business pseudonym
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`Quadriga Worldwide Ltd.
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`Quadriga agreement
`Amended and Restated Software Developmentand License
`Agreement between Touchstream and Quadriga (PTX-567)
`
`
`Tr.
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`Trial Transcript, located at:
`Dkt. 259 (Day1, pp. 1-244):
`Dkt. 260 (Day 2, pp. 245-647);
`Dkt. 262 (Day3, pp. 648-1028);
`Dkt. 264 (Day 4, pp. 1029-1310); and
`Dkt. 266 (Day 5, pp. 1311-1376).
`Certain portions of the Trial Transcript are and remain underseal.
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`*All emphasis added unless otherwise noted.
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`-iv-
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 6 of 28
`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 6 of 28
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`Exhibit
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`JTX-1
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`JTX-3
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`JTX-21
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`JTX-51
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`JTX-63
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`PTX-567
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`PTX-863
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`PTX-865
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`PTX-885
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`DTX-118A
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`DTX-120
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`DTX-632
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`TABLE OF EXHIBITS
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`Description
`Control YouTube on the Desktop, or the TV ... with the YouTube
`Remote Appfor Your Phone, YouTube Official Blog (Nov.9,
`2010
`Howto Control Google TV or YouTube Leanback with YouTube
`Remote, YouTube
`(Nov. 14, 2010
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`USS. Patent No. 9,490,998
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`Features, Google TV (Oct. 5, 2010)
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`YouTube Remote API Server Documentation
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`Quadriga agreement
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`°289 patent
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`°251 patent
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`°528 patent
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`Howto Control Google TV or YouTube Leanback with YouTube
`Remote, YouTube
`(Nov. 14, 2010)
`(videofile
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`Declaration of Janos Levai
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`GTSSource Code Printouts
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`-\V-
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 7 of 28
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`I.
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`INTRODUCTION
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`Rather than proving infringement and building a damages case based on evidence,
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`Touchstream leveraged a willfulness case it knew had no merit—inflaming the jury into a liability
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`verdict for which the jury awarded hundreds of millions of dollars in damages disconnected from
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`reality and admissible expert opinion. Touchstream called numerous witnesses who repeatedly
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`discussed a few insubstantial meetings between Touchstream and Google that took place years
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`before trial and which no one remembered in substance and had nothing whatsoever to do with
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`infringement. Counting on the jury being irked that Google representatives did not remember the
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`details of meetings that, as it turns out, Touchstream representatives also barely recalled,
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`Touchstream then presented a damages case that was based on pure speculation. None of this
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`proved infringement, rebutted invalidity, or supported a damages claim cognizable under the law,
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`and none of it should have been permitted. If the Court declines to grant JMOL, a new trial
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`untainted by these prejudicially confusing and evidentially unmoored arguments is required.
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`A new trial with an explicit construction of “server system” is also required. Given the
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`parties’ dispute as to the plain and ordinary meaning of that term, and the lack of an explicit
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`construction, the jury, rather than this Court, ultimately decided claim construction—a prejudicial
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`legal error. A new trial is also warranted given the great weight of the evidence against the verdict.
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`II.
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`LEGAL STANDARD
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`The Court may grant a new trial “for any reason for which a new trial has heretofore been
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`granted in an action at law in federal court,” Fed. R. Civ. P. 59(a)(1)(A), including where “‘(1) the
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`verdict is against the weight of the evidence, (2) the amount of damages awarded is excessive, or
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`(3) the trial was unfair or marred by prejudicial error,” ESW Holdings, Inc. v. Roku, Inc., No. 6-
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`19-CV-00044-ADA, 2021 WL 3742201, at *1 (W.D. Tex. Aug. 24, 2021). Trial error warrants a
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`new trial when, “after considering the record as a whole, the court concludes that manifest injustice
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 8 of 28
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`will result from letting the verdict stand.” Foradori v. Harris, 523 F.3d 477, 506 (5th Cir. 2008).
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`III. TOUCHSTREAM’S WILLFULNESS CASE MARRED THE TRIAL WITH
`PREJUDICIAL ERROR, WARRANTING A NEW TRIAL UNTAINTED BY THAT
`ISSUE AND EVIDENCE
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`Weeks before trial, the Court warned Touchstream that its willfulness claim was
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`threadbare. Nevertheless, Touchstream pursued that claim, taking a path that ultimately marred
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`the trial and undermines confidence in the infringement verdict. Touchstream used that claim as
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`a gateway for prejudicial evidence that confused, misled, and inflamed the jury. As the Court held
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`in granting JMOL of no willfulness, Touchstream’s willfulness evidence fell well short of what
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`the law requires. Willfulness requires proof that the alleged infringement was “deliberate or
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`intentional,” SRI Int’l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323, 1330 (Fed. Cir. 2021), and that the
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`defendant “had a specific intent to infringe,” Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964,
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`987 (Fed. Cir. 2021). Touchstream’s willfulness case was built on high-level meetings between
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`the companies (that occurred before any asserted patent issued) and general knowledge of
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`Touchstream’s patents, and did not prove either requirement. Nonetheless, the damage had been
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`done—its willfulness case leached into the rest of the case, tainting the trial and confusing and
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`misleading the jury on the surviving issues and severely prejudicing Google’s defenses. A
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`miscarriage of justice would result if the verdict were allowed to stand. A new trial is warranted.
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`A.
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`Touchstream Prejudicially Leveraged A Legally Inadequate Willfulness Case
`To Imply That Google Copied Its Technology
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`Although the Court denied Google’s motion for summary judgment of no willfulness, it
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`did so “under th[e] conditions” that, “if there’s nothing more than” what Touchstream had shown
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`to date, i.e., evidence of the parties’ 2011/2012 meetings and of general knowledge of
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`Touchstream’s patents, JMOL of no willfulness “will probably be granted.” Dkt. 225 at 55:6-
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`56:19. Given this state of play, the Court added: “And so it’s up to the plaintiffs to decide whether
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`-2-
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 9 of 28
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`they want to tell the jury at the beginning that there’s – they’re asking for willfulness. They have
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`to if they want to get it.” Id. at 55:17-20.
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`Despite having “nothing more than” what it presented to oppose Google’s summary
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`judgment motion, Touchstream tried to have things both ways at trial. From the start, it
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`emphasized its willfulness evidence, threadbare though it was, and told the Court: “Yes. We are
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`asking for willfulness.” Tr. 10:4-25.1 Yet Touchstream avoided directly mentioning its willfulness
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`claim during its opening statement—a remarkable strategy for a plaintiff purportedly seeking
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`treble damages for alleged willfulness. Instead, Touchstream told the jury it would “prove three
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`things,” two of which concerned infringement and the third was “the royalties owed.” E.g., Tr.
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`53:17-22. Nevertheless, Touchstream used the meetings between the parties as the centerpiece of
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`its opening. Tr. 33:21-34:1 (“Google met with that startup again and again and again to learn
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`everything it could about how that startup’s technology worked. Once Google had what it needed,
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`it kicked that startup to the curb and then began developing its infringing Chromecast technology
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`in secret.”); Tr. 40:19-44:24 (referencing the meetings and emails between the parties).
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`Touchstream’s presentation of evidence followed the same dance. Over half of the
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`witnesses it called were for the sole purpose of implying that Google copied Mr. Strober’s
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`invention after Touchstream and Google briefly met. Touchstream presented no argument on
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`willfulness, nor evidence of what it needed to show to establish willfulness: that Google had a
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`specific intent to infringe the asserted patents.
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`As its first witness, Touchstream called Mr. Strober. His testimony largely focused on
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`1 The colloquy occurred during Touchstream’s objection to Google’s designation of deposition
`testimony showing that Touchstream employees had opined that “Google was not infringing.” Tr.
`10:4-25. In overruling Touchstream’s objection, the Court reminded Touchstream that, “if you
`want there to be willfulness,” this evidence was relevant. Tr. 11:23-12:4.
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 10 of 28
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`Touchstream’s 2011/2012 meetings with Google. He testified that Touchstream sought a
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`partnership because Touchstream “thought that [it] could integrate into [Google’s] existing Google
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`TV.” Tr. 100:10-17. He then recounted that he had met with Google twice—once over Skype for
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`about an hour with Google’s Majd Bakar and Ambarish Kenghe, Tr. 100:24-103:24, and another
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`time at a CES trade show, although he provided almost no detail on the latter, Tr. 104:10-20. While
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`Mr. Strober claimed that Google showed a lot of interest in Touchstream’s product and “wanted
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`to see under the hood,” Tr. 103:11-20, he admitted he had no record of sharing any technical
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`information with Google, Tr. 125:11-14. Nonetheless, Mr. Strober proclaimed, while attempting
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`to hold back tears, that he was “very upset” “about Mr. Bakar taking credit for the invention of
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`Chromecast” because Mr. Strober “feel[s] like [he is] the inventor of Chromecast and the—
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`Touchstream Technologies,” Tr. 107:14-19. He was completely silent as to any evidence that
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`could support a finding that Google had a specific intent to infringe.
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`Touchstream called other current and former employees for their take on the parties’
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`meetings—again emphasizing only that the meetings occurred, and never pointing to any evidence
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`of a specific intent to infringe or even that Touchstream identified a patent number to Google. For
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`example, Michael Rinzler, Touchstream’s then-President, remembered only the first meeting,
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`which he estimated lasted an hour; he identified no others. Tr. 188:7-190:3. And he testified to
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`nothing more than that Touchstream demonstrated, and the parties generally discussed, its
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`technology. Tr. 189:8-22. He could not recall if Touchstream provided any technical materials.
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`Tr. 189:17-22, 191:2-10. Herb Mitschele, Touchstream’s CEO, testified that Google and
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`Touchstream met four times. Tr. 263:15-277:2. Like Messrs. Strober and Rinzler, Mr. Mitschele
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`was unable to point to any specific technical information shared. Tr. 287:1-20. And he admitted
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`that no one from Touchstream ever shared a patent number with Google. Tr. 293:22-294:5. He
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 11 of 28
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`further admitted that, after Chromecast’s June 2013 launch until the filing of this lawsuit in June
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`2021, no one from Touchstream called, emailed, wrote, or otherwise contacted Google to suggest
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`Touchstream believed Google was infringing. Tr. 293:12-294:16.
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`Touchstream also asked its witnesses about the timing of Chromecast’s launch, again
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`attempting to paint an inference of copying. E.g., Tr. 106:8-107:19 (Strober); Tr. 197:2-12
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`(Rinzler), Tr. 282:3-10 (Mitschele). But the timeline merely showed that Google launched its
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`Chromecast product a while after its brief meetings with Touchstream. Touchstream’s witnesses
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`could not point to any instance where they notified Google of any purported infringement, e.g., Tr.
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`126:9-127:8 (Strober); Tr. 293:12-294:16 (Mitschele), and Touchstream otherwise presented no
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`evidence that Google had any specific intent to infringe.
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`Touchstream also presented video deposition testimony from Google witnesses—Shanna
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`Prevé, a former Google employee; Mr. Bakar, Chromecast’s creator; Mr. Kenghe, co-founder and
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`product management lead of Chromecast; and Jack Weixel, Google’s then-Head of Technology
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`Partnerships—in which Touchstream’s counsel had asked about the parties’ meetings and
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`relationship. Throughout those designations, the witnesses repeatedly testified they had no
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`memory of the now-decade-old meetings. In fact, Touchstream designated testimony in which the
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`witnesses repeatedly—by Google’s count, at
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`least 33
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`times—answered questions by
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`Touchstream’s counsel regarding whether they had any recollection of meeting with Touchstream,
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`and all repeatedly testified they did not:
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`● “Q. Do you remember having meetings with the members of the team at Shodogg? A. I do
`not.” Tr. 138:23-25 (Prevé).
`● “Q. Do you remember seeing demos of the Shodogg product on Skype? A. No.” Tr. 139:1-
`3 (Prevé).
`● “Q. Do you remember facilitating meetings between Shodogg and Majd Bakar and Ambarish
`Kenghe? A. No.” Tr. 139:4-6 (Prevé).
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 12 of 28
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`● “Q. Do you remember requesting that Shodogg provide a demo to Mr. Bakar and Mr. Kenghe?
`A. No.” Tr. 139:7-9 (Prevé).
`● “Q. Do you recall meeting someone named Rajiv Lulla? A. I don’t.” Tr. 139:21-23 (Prevé).
`● “Q. Do you remember having a call with Rajiv? A. I don’t.” Tr. 140:1-2 (Prevé).
`● “Q. Do you recall discussing meeting Shodogg at CES? A. I don’t.” Tr. 140:13-15 (Prevé).
`● “Q. Do you recall requesting a PowerPoint deck giving an overview of Shodogg’s product
`and technology in December of 2011? A. I don’t.” Tr. 141:6-9 (Prevé).
`● “Q. [D]o you recall sending a TV box to Shodogg? A. I don’t recall.” Tr. 144:15-17 (Prevé).
`● “Q. Do you recall seeing how Shodogg’s technology was able to move content quickly and
`efficiently between different screens? A. I don’t.” Tr. 144:25-145:3 (Prevé).
`● “Q. Do you recall seeing at all how Shodogg’s technology worked? A. I don’t.” Tr. 145:10-
`12 (Prevé).
`● “Q. … [D]o you have any reason to doubt that a Skype call occurred on 11:00 a.m., Pacific
`time, on December 22nd? A. I have no idea.” Tr. 148:16-19 (Prevé).
`● “Q. Do you know whether you met with the Shodogg team at the Venetian in January? A. I
`don’t remember.” Tr. 149:22-24 (Prevé).
`● “Q. So does this e-mail chain refresh your recollection about meeting with a company called
`Shodogg and various members of their team? A. It doesn’t.” Tr. 151:2-5 (Prevé).
`● “Q. And you have no recollection of interactions with Shodogg whatsoever; is that right? A.
`I don’t.” Tr. 156:16-18 (Prevé).
`● “Q. Do you remember meeting with people from a company named Shodogg? A. No.” Tr.
`169:7-9 (Bakar).
`● “Q. Do you remember attending the booth for Shodogg at CES in 2012? A. No.” Tr. 169:10-
`12 (Bakar).
`● “Q. Do you recall expressing interest to Ms. Prevé in seeing a demo of the Shodogg product
`before you met with them at CES? A. No.” Tr. 172:1-4 (Bakar).
`● “Q. Do you recall having a Skype meeting with Herb Mitschele and others demonstrating the
`Shodogg technology? A. No.” Tr. 173:12-15 (Bakar).
`● “Q. Do you recall indicating to Mr. Mitschele that you intended to meet with him at CES? A.
`No.” Tr. 173:21-23 (Bakar).
`● “Q. Does [seeing an invite from Shodogg for CES] refresh your recollection at all on hearing
`or seeing or meeting with Shodogg? A. No.” Tr. 174:22-24 (Bakar).
`● “Q. You don’t remember seeing any demo where Shodogg showed – A. No. Q. – the ability
`to cast content between devices? A. No. I don’t remember.” Tr. 175:3-8 (Bakar).
`● “Q. Do you recall having a meeting maker to set up a WebEx/Skype demo of Shodogg? A.
`No.” Tr. 176:4-6 (Bakar).
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 13 of 28
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`● “Q. Do you recall meeting with a company named Shodogg in late 2011, early 2012? A. I
`don’t.” Tr. 334:5-7 (Kenghe).
`● “Q. Do you recall having a Skype call with Shodogg around this time? A. I don’t recall.” Tr.
`338:24-339:1 (Kenghe).
`● “Q. Do you recall setting up a meeting with Shodogg at CES? A. I—I don’t recall.” Tr.
`340:3-5 (Kenghe).
`● “Q. And you don’t recall actually going to the Venetian [at CES] to see the Shodogg booth?
`A. I don’t recall that.” Tr. 340:18-20 (Kenghe).
`● “Q. Mr. Kenghe, do you recall Shodogg personnel coming to Mountain View in early 2012 to
`meet with people on the Google TV team? A. No. I don’t.” Tr. 340: 21-24 (Kenghe).
`● “Q. So do you recall sending [an introductory] e-mail to Mr. Geoff Sykes at Shodogg? A. I
`don’t.” Tr. 355:24-356:1 (Weixel).
`● “Q. Do you have any reason to believe you did not go meet [with Touchstream] that day? A.
`I don’t recall meeting them that day.” Tr. 359:15-17 (Weixel).
`● “Q. Do you recall leaving your house to go meet with Shodogg on a Friday in February of
`2012? A. No. I don’t.” Tr. 360:4-6 (Weixel).
`● “Q. So does [seeing an email reflecting a meeting] refresh your memory in any way that you
`did actually meet with Michael and Rajiv of Shodogg at the Google campus on that Friday?
`A. I’m sorry, but I don’t remember that meeting.” Tr. 361:5-8 (Weixel).
`● “Q. And when we were looking at Exhibit 12 [emails setting up a phone call with Mr. Rinzler
`in June 2012]. Do you remember that? A. I don’t remember the meeting. I can see it in the—
`in this document that you’ve given me.” Tr. 362:10-15 (Weixel).
`
`Touchstream also presented video deposition testimony of George Bonanto, Senior Patent
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`Counsel at Google, and at the top of that clip Touchstream included the statement that “Topic 1”
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`for his testimony was whether Google was aware of Touchstream’s intellectual property. Tr.
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`554:16-24. The remainder of the clip concerned Google’s citation to one or more of the asserted
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`patents in the prosecution history of Google’s inventions; Mr. Bonanto simply confirmed this was
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`what the prosecution record showed. Tr. 555:5-556:24. This, of course, was not evidence of
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`Google having a specific intent to infringe. See EcoFactor, Inc. v. Google LLC, No. 6:20-cv-
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`00075-ADA, Dkt. No. 236 at 1089-1092 (W.D. Tex. 2022); Callwave Commc’ns LLC v. AT&T
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`Mobility LLC, No. 12-1701, 2014 WL 5363741, at *2 (D. Del. Jan. 28, 2014). Rather, Mr.
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`Bonanto’s testimony at most showed that Google was generally aware of Touchstream’s patents.
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 14 of 28
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`Meanwhile, the jury heard from a Touchstream advisor, Rajiv Lulla, who attended an in-
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`person, “less than 12 minute[]” meeting. Tr. 805:5-14, 806:20-814:25. Mr. Lulla testified that
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`Touchstream’s product “was half-baked” when it met with Google, that he “d[id]n’t believe we
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`actually did the demo” and instead provided “just kind of a broad brush” of Touchstream’s
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`technology, and that “[i]t was way too early” to even mention any Touchstream patents or
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`applications. Tr. 810:22-25, 811:23-24, 813:19-20, 814:21-25.
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`By the time Touchstream rested, it was clear its willfulness case had “nothing more than”
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`what it offered at the summary judgment stage. Dkt. 225 at 55:15-16. This Court rightly held this
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`evidence legally insufficient to establish willfulness and granted JMOL. Tr. 1194:25-1195:2.
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`B.
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`Touchstream’s Strategy To Pursue An Unmeritorious Willfulness Case At
`Trial Was Highly Prejudicial To Google’s Defenses
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`With Touchstream’s willfulness case properly dismissed, Touchstream’s willfulness
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`evidence—the meetings between the parties, what did or did not happen during those meetings,
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`Chromecast’s launch, and Touchstream’s patents noted in the prosecution of Google’s own
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`inventions—became irrelevant to all surviving issues. Faced with similar records where plaintiffs
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`advanced evidence for claims dismissed at JMOL—evidence unrelated to surviving claims but that
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`a jury could mistakenly think overlap with surviving claims—courts have granted new trials.
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`In Cham v. Station Operators, Inc., 685 F.3d 87 (1st Cir. 2012), for example, the First
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`Circuit affirmed a district court’s grant of a new trial on an FMLA retaliation claim after a
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`plaintiff’s hostile work environment and disparate treatment claims had been dismissed. Id. at 97.
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`The court of appeals explained that the evidence relevant to the dismissed claims had no bearing
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`on the surviving claim, but that evidence “could be both prejudicial and confusing to” the surviving
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`claim. Id. The court held: “The admission of evidence that later becomes irrelevant when one or
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`more claims is rejected as a matter of law prior to submission to the jury may be grounds for
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`Case 6:21-cv-00569-ADA Document 280 Filed 09/26/23 Page 15 of 28
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`granting a new trial, if deemed unduly prejudicial.” Id. While the court acknowledged that an
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`“appropriate response” in certain cases might be “to instruct the jury to disregard the evidence,” it
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`emphasized that “[t]here are times where … irrelevant evidence is sufficiently prejudicial that a
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`limiting instruction will not be sufficient and a new trial is proper.” Id. at 98. Because the
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`irrelevant evidence in that case could have affected a core finding required for the surviving claim,
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`the court affirmed the district court’s conclusion that, even though the defendant did not request a
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`limiting instruction, “there would be a miscarriage of justice if the verdict were to stand.” Id.
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`The same is true here. As described above, Touchstream presented the same evidence of
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`alleged willfulness—an attempt to show “circumstantial evidence of copying” by Google, Tr.
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`1185:22—that this Court warned would be insufficient. And after the Court granted JMOL of no
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`willfulness in the midst of trial, this evidence became irrelevant to, for example, Touchstream’s
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`surviving infringement claim. But given the emphasis that Touchstream placed on its willfulness
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`case, and the cumulative manner in which it presented that evidence—repeatedly stressing the
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`parties’ meetings and implying without any evidence that Google may have taken Touchstream’s
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`proprietary information and copied it for its own products—the risk of jury confusion in evaluating
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`infringement and Google’s defense thereto (including its invalidity defense based on Google
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`system art) was incredibly high, and no limiting instruction could have cured the unfair prejudice.
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`For example, while evidence of “copying … is of no import on the question of whether the claims
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`of an issued patent are infringed,” Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1351
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`(Fed. Cir. 2002), Touchstream’s pursuit of willfulness was highly prejudicial on alleged
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`infringement given the nature of those two questions and the manner in which Touchstream framed
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`its case. Even in the ordinary infringement case, this Court’s standing MIL No. 9 reflects the
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`prejudice of alleged copying to defending against alleged infringement. Dkt. 222 at 2 (precluding
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`“evidence, testimony, or argument that characterizes any other person or entity’s actions as
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`‘stealing,’ ‘copying,’ ‘misappropriating,’ ‘pirating,’ ‘trespassing,’ or any similar terms”).
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`Given Touchstream’s deliberate and repeated emphasis of its purported evidence of
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`copying, there can be no confidence the jury reached a verdict on evidence solely relevant to the
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`issues before it. For infringement, this is especially true considering Touchstream’s failure of
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`proof. See infra Part V. A new trial is warranted.
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`IV. A NEW TRIAL ON DAMAGES IS WARRANTED
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`At minimum, a new damages trial should be held. Although the jury did not award the
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`amount or form of damages Touchstream sought, there can be no doubt that the award was
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`improperly prejudiced and confused by the unreliable testimony of Touchstream’s damages expert,
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`Mark Chandler. In multiple respects, Mr. Chandler failed to apply a sound methodology—with
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`each of these errors an independent basis on which his royalty estimate should have been excluded.
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`Indeed, his testimony failed to offer even the theories his expert report attempted. The end result
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`was a royalty estimate exponentially higher than the lone agreement on which he relied as well as
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`every other agreement in evidence, and that necessarily tainted the jury’s award. See Lucent
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`Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1329-32 (Fed. Cir. 2009) (vacating award “roughly
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`three to four times the average amount” of licenses in evidence). Whether the problem is viewed
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`as erroneously admitted expert opinion or as a failure of proof, the damages cannot be upheld.2
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`A. Mr. Chandler Relied On A Noncomparable Agreement And License Fee
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`“[L]icenses relied on by the patentee in proving damages [must be] sufficiently comparable
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`to the hypothetical license at issue in suit.” VirtnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1330
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`(Fed. Cir. 2014); Apple, Inc. v. Wi-Lan, Inc., 25 F.4th 960, 972 n.5 (Fed. Cir. 2022) (“Sufficient
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`2 Google preserved its objections to Mr. Chandler’s testimony in its Daubert and MIL No. 2
`motions, which the Court denied.
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`comparability is a threshold requirement for licenses to be admissible.”). Further, “where licenses
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`are at issue,” the patentee’s burden to prove damages “includes ‘the burden to prove that the
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`licenses were sufficiently comparable.’” Omega Patents, LLC v. CalAmp Corp., 13 F.4th 1361,
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`1377 (Fed. Cir. 2021). “[A]lleging a loose or vague comparability between different technologies
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`or licenses does not suffice,” id. at 1379, because “comparisons of past patent licenses to the
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`infringement must account for ‘the technological and economic differences’ between them,”
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`Wordtech Sys., Inc. v. Integrated Networks Sols., Inc., 609 F.3d 1308, 1320 (Fed. Cir. 2010).
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`Providing a sound basis for comparability is precisely what Touchstream and Mr. Chandler
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`failed to do. Mr. Chandler premised his damages theory on a single agreement: a “Software
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`Development and Licence Agreement” between Touchstream and Quadriga, a hotel services
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`entity, in July 2013.