Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 1 of 28
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`
`Plaintiff,
`
`Civil Case No. 6:21-cv-569-ADA
`
`JURY TRIAL DEMANDED
`
`U.S. District Judge Alan Albright
`
`
`
`
`
`v.
`
`
`GOOGLE LLC,
`
`
`Defendant.
`
`
`
`
`
`TOUCHSTREAM TECHNOLOGIES, INC.’S OPPOSITION TO GOOGLE’S
`MOTION FOR A NEW TRIAL
`
`
`
`
`
`

`

`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 2 of 28
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`
`TABLE OF CONTENTS
`
`
`
`I. LEGAL STANDARD ............................................................................................................. 1
`
`II. GOOGLE WAS NOT UNFAIRLY PREJUDICED BY EVIDENCE RELEVANT TO
`WILLFULNESS. ..................................................................................................................... 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`Google Forfeited, or at Least Fatally Undermined, its Claim of Unfair Prejudice as
`it Waited Until After the Verdict to Raise the Issue. .............................................. 2
`
`Touchstream’s Evidence Did Not Result in “Manifest Injustice” as Google
`Strategically Leaned in to the Same Issues it Now Complains Of. ........................ 4
`
`Touchstream’s Evidence was Not Unfairly Prejudicial Because it Remained
`Relevant to Google’s Arguments on Damages and Invalidity. ............................... 5
`
`Google was Not Unfairly Prejudiced by the Willfulness Evidence Because
`Touchstream’s Willfulness Case was Legally and Factually Sound. ..................... 7
`
`III. A NEW TRIAL ON DAMAGES IS NOT WARRANTED.................................................... 8
`
`A.
`
`B.
`
`C.
`
`Mr. Chandler’s Opinions Regarding the Quadriga Agreement Were Proper. ........ 9
`
`Google’s Apportionment Complaints Remain Unpersuasive. .............................. 13
`
`Use of Google’s Relevant Revenue Numbers is Not a Basis for a New Trial. ..... 18
`
`IV. GOOGLE’S REMAINING ARGUMENTS ARE UNPERSUASIVE. ................................ 19
`
`V. CONCLUSION ..................................................................................................................... 20
`
`
`
`
`
`
`
`
`ii
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 3 of 28
`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Acceleration Bay LLC v. Activision Blizzard Inc.,
`No. 16-00453, 2019 WL 4194060 (D. Del. Sept. 4, 2019) ......................................................12
`
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012)............................................................................................9, 12
`
`after
`PTX 1076 Office Action ............................................................................................................7
`
`Arigna Tech. Ltd. v. Nissan Motor Co., Ltd.,
`No. 222CV00126JRGRSP, 2022 WL 14318049 (E.D. Tex. Oct. 24, 2022) ...........................13
`
`Bd. of Regents Univ. of Texas Sys. v. Bos. Sci. Corp.,
`18-392, 2022 WL 17584180 (D. Del. Dec. 12, 2022) .............................................................14
`
`Bio-Rad Lab'ys, Inc. v. 10X Genomics, Inc.,
`No. 15-152, 2018 WL 5729732 (D. Del. Nov. 2, 2018) ....................................................13, 16
`
`C R Bard Inc. v. AngioDynamics, Inc.,
`979 F.3d 1372 (Fed. Cir. 2020)..............................................................................................7, 8
`
`Cave Consulting. v. Truven Health Analytics Inc.,
`No. 15-CV-02177, 2017 WL 4772348 (N.D. Cal. Oct. 23, 2017) ..........................................12
`
`Cham v. Station Operators
`685 F.3d 87 (1st Cir. 2012) ................................................................................................3, 5, 6
`
`Chrimar Holding Co., LLC v. ALE USA Inc.,
`732 Fed. App’x 876 (Fed. Cir. 2018).......................................................................................13
`
`Conway v. Chem. Leaman Tank Lines, Inc.,
`610 F.2d 360 (5th Cir. 1980) ...............................................................................................1, 19
`
`DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
`567 F.3d 1314 (Fed. Cir. 2009)..................................................................................................6
`
`Ericsson, Inc. v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014)..................................................................................................9
`
`Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prod. Grp.,
`LLC, 879 F.3d 1332 (Fed. Cir. 2018) ......................................................................................13
`
`iii
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`

`

`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 4 of 28
`
`
`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)................................................................................................19
`
`Foradori v. Harris,
`523 F.3d 477 (5th Cir. 2008) .................................................................................................1, 4
`
`Freshub, Inc. v. Amazon.com Inc.,
`576 F. Supp. 3d 458 (W.D. Tex. 2021) (Albright, J.) ................................................................2
`
`Heidelberger Druckmaschinen AG v. Hantscho Commercial Products, Inc.,
`21 F.3d 1068(Fed. Cir. 1994).....................................................................................................6
`
`LaserDynamics, Inc. v. Quanta Computer, Inc.,
`694 F.3d 51 (Fed. Cir. 2012)....................................................................................................17
`
`Multimedia Pat. Tr. v. Apple Inc.,
`No. 10-CV-2618, 2013 WL 173966 (S.D. Cal. Jan. 16, 2013)..................................................3
`
`Nissho-Iwai Co. v. Occidental Crude Sales, Inc.,
`848 F.2d 613 (5th Cir. 1988) .....................................................................................................3
`
`Novo Nordisk A/S v. Becton Dickinson & Co.,
`304 F.3d 1216 (Fed. Cir. 2002)..............................................................................................3, 4
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)................................................................................................19
`
`PerdiemCo, LLC v. Industrack LLC,
`15-726, 2016 WL 6611488 (E.D. Tex. Nov. 9, 2016) .............................................................17
`
`Power-One, Inc. v. Artesyn Technologies, Inc.,
`599 F.3d 1343 (Fed. Cir. 2010)..................................................................................................6
`
`Ravo v. Covidien LP,
`55 F. Supp. 3d 766 (W.D. Pa. 2014) ........................................................................................11
`
`ReedHycalog UK, Ltd. v. Diamond Innovations Inc.,
`No. 08-CV-325, 2010 WL 3238312 (E.D. Tex. Aug. 12, 2010) ...............................................3
`
`Sprint Commc’ns Co. L.P. v. Charter Commc’ns, Inc.,
`No. CV 17-1734, 2021 WL 982730 (D. Del. Mar. 16, 2021)....................................................5
`
`Sprint Commc'ns Co., L.P. v. Mediacom Commc'ns Corp.,
`17-1736, 2021 WL 982734 (D. Del. Mar. 16, 2021) ...............................................................13
`
`Sprint Commc'ns Co., L.P. v. Time Warner Cable, Inc.,
`760 F. App'x 977 (Fed. Cir. 2019) ...........................................................................................15
`
`iv
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`

`

`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 5 of 28
`
`
`SSL Servs. LLC v. Citrix Sys. Inc.,
`769 F.3d 1073 (Fed. Cir. 2014)..........................................................................................10, 12
`
`Summit 6, LLC v. Samsung Elecs. Co.,
`802 F.3d 1283 (Fed. Cir. 2015)................................................................................................11
`
`T-Rex Property AB v. Regal Ent. Grp.,
`No. 16-cv-927, 2019 WL 4940763 (E.D. Tex. July 16, 2019) ................................................10
`
`Uniloc USA, Inc. v. Microsoft Corp.,
`632 F.3d 1292 (Fed. Cir. 2011)..........................................................................................16, 17
`
`Vectura Ltd. v. Glaxosmithkline LLC,
`981 F.3d 1030 (Fed. Cir. 2020)................................................................................................13
`
`VirnetX, Inc. v. Cisco Systems, Inc.,
`767 F.3d 1308 (Fed. Cir. 2014)......................................................................................9, 11, 13
`
`WCM Indus., Inc. v. IPS Corp.,
`721 F. App'x 959 (Fed. Cir. 2018) .............................................................................................8
`
`Other Authorities
`
`Fed. R. Evid. 403 .............................................................................................................................2
`
`Fed. R. Evid. 702 and 703..............................................................................................................16
`
`Google’s Daubert...........................................................................................................................12
`
`Rule 59(a).........................................................................................................................................1
`
`
`
`
`
`
`
`v
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 6 of 28
`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 6 of 28
`
`INDEX OF EXHIBITS
`
`Exhibits to Opposition
`
`Mark Chandler Trial Demonstrative Trial transcript excerpts from July 17-21, 2023
`
`Exhibit
`
`a
`
`Vi
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 7 of 28
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`Google would like a do-over because its strategy failed to convince the jury. Google
`
`complains it was unfairly prejudiced by Touchstream’s willfulness-related evidence, but a party
`
`cannot make a strategic decision to remain silent as evidence is presented during trial, leverage the
`
`evidence for its own purposes, and then cry unfair prejudice after the jury returns its verdict.
`
`Nor is Google entitled to a new trial on damages. Rehashing its failed Daubert arguments,
`
`Google fails to show that the verdict was against the great weight of the evidence or that
`
`miscarriage of justice occurred. Likewise, Google’s renewed argument about the construction of
`
`“server system” does not provide a basis for a new trial. The jury’s verdict of infringement, no
`
`invalidity, and damages is well supported by the evidence, and Google’s motion should be denied.
`
`I.
`
`LEGAL STANDARD
`
` Under Rule 59(a), “[a] new trial will not be granted based on trial error unless, after
`
`considering the record as a whole, the court concludes that manifest injustice will result from
`
`letting the verdict stand.” Foradori v. Harris, 523 F.3d 477, 506 (5th Cir. 2008); see also Conway
`
`v. Chem. Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir. 1980) (“[N]ew trials should not be
`
`granted on evidentiary grounds unless, at a minimum, the verdict is against the great not merely
`
`the greater weight of the evidence.”).
`
`II.
`
`GOOGLE WAS NOT UNFAIRLY PREJUDICED BY EVIDENCE RELEVANT
`TO WILLFULNESS.
`
`The evidence Google only now complains of did not unfairly prejudice Google. On the
`
`contrary, Google capitalized on it to justify the introduction of its own similar evidence. Moreover,
`
`the evidence Google complains of remained relevant to other issues after the Court removed
`
`willfulness from the case, which is why Google continued to press that evidence after that ruling.
`
`Google falls far short of showing the sort of manifest injustice required to obtain a new trial.
`
`
`
`
`
`1
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 8 of 28
`
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`A.
`
`Google Forfeited, or at Least Fatally Undermined, its Claim of Unfair
`Prejudice as it Waited Until After the Verdict to Raise the Issue.
`
`Google’s lead argument for a new trial was never raised during trial. This argument is thus
`
`forfeited or, at the very least, Google’s failure to object during trial severely undercuts Google’s
`
`after-the-fact claim that this evidence unfairly prejudiced the overall trial presentation. The
`
`forfeiture is not excused by Google’s new, thinly veiled accusations that Touchstream somehow
`
`acted improperly. As this Court has recently explained, “[i]t is an ‘elementary principle of federal
`
`law’ that a party cannot raise misconduct objections for the first time on a motion for new trial.”
`
`Freshub, Inc. v. Amazon.com Inc., 576 F. Supp. 3d 458, 466 (W.D. Tex. 2021) (Albright, J.).
`
`Google had many opportunities to address the issue of potential prejudice before the jury
`
`returned its verdict. Touchstream disclosed the factual support for its willfulness case during
`
`discovery and again when Google moved for summary judgment. If Google had concerns about
`
`the prejudicial nature of that evidence, it could have moved to bifurcate the issue at trial. And it
`
`could have objected at any time during trial if it believed the prejudicial quality of Touchstream’s
`
`evidence was beginning to outstrip its probative value. See Fed. R. Evid. 403. In particular, Google
`
`now suggests that Touchstream presented cumulative evidence from Google’s employees on their
`
`inability to remember meeting with Touchstream, but the time for such an objection is during the
`
`allegedly cumulative presentation. Instead, Google was silent at trial and only now anthologizes
`
`two-pages of the collective amnesia in a demand for a new trial.
`
`Furthermore, if, as Google claims, the willfulness evidence “became irrelevant to all
`
`surviving issues” when the Court granted JMOL, Google should have asked the Court to instruct
`
`the jury that Touchstream’s willfulness evidence was to be disregarded. As the Fifth Circuit
`
`explained in Guthrie v. J.C. Penney Co., when evidence has been rendered irrelevant because
`
`certain claims were dismissed before the case went to the jury, a party who fails to request a
`
`2
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 9 of 28
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`limiting instruction forfeits its right to complain that the evidence was unfairly prejudicial. See 803
`
`F.2d 202, 208–09 (5th Cir. 1986) (applying plain-error review to affirm denial of new trial after
`
`directed verdict rendered emotional-distress evidence irrelevant). Google’s failure to request such
`
`an instruction is therefore fatal to its request for a new trial.
`
`Rather than confront Guthrie, which is directly on point, Google simply ignores it in favor
`
`of the First Circuit’s decision in Cham v. Station Operators 685 F.3d 87 (1st Cir. 2012). But this
`
`reliance on a single, out-of-circuit case only underscores the quixotic nature of Google’s claim.
`
`Cham flouts Guthrie, and the overwhelming weight of the relevant authority holds that a party will
`
`not obtain a new trial based on an issue it raises for the first time after the jury has returned its
`
`verdict.1 Moreover, in Cham the prejudicial evidence was entirely irrelevant to the plaintiff’s
`
`remaining claims. Cham, 685 F.3d at 92. Here, the evidence in this case remained relevant to other
`
`issues, as further explained infra.
`
`Courts should not grant new trials lightly. The Fifth Circuit reviews the grant of a new trial
`
`more broadly “because of our respect for the jury as an institution and our concern that the party
`
`who persuaded the jury should not be stripped unfairly of a favorable decision.” See Nissho-Iwai
`
`Co. v. Occidental Crude Sales, Inc., 848 F.2d 613, 619 (5th Cir. 1988). Here Google made a
`
`strategic decision not to lodge objections or seek limiting instructions. It instead committed its fate
`
`to the jury. See id. (reversing grant of new trial because moving party waited until after jury
`
`
`1 Compare Cham, 685 F.3d 87, with Novo Nordisk A/S v. Becton Dickinson & Co., 304 F.3d 1216,
`1220 (Fed. Cir. 2002) (“[C]ounsel . . . cannot as a rule remain silent, interpose no objections, and
`after a verdict has been returned seize for the first time on the point that the comments to the jury
`were prejudicial.”) (quotation omitted); ReedHycalog UK, Ltd. v. Diamond Innovations Inc., No.
`08-CV-325, 2010 WL 3238312, at *3 (E.D. Tex. Aug. 12, 2010) (holding that, because the
`defendant failed to object to allegedly prejudicial argument, the issue was waived and could not
`provide a basis for a new trial); Multimedia Pat. Tr. v. Apple Inc., No. 10-CV-2618, 2013 WL
`173966, at *1 (S.D. Cal. Jan. 16, 2013) (declining request for a mistrial because plaintiff made a
`strategic decision not to object).
`
`3
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 10 of 28
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`returned its verdict to raise the issue). This is not a proper basis to upend the jury’s decision.
`
`B.
`
`Touchstream’s Evidence Did Not Result in “Manifest Injustice” as Google
`Strategically Leaned in to the Same Issues it Now Complains Of.
`
`Google cannot show that the jury’s verdict worked a manifest injustice in view of the record
`
`as a whole, which shows Google received a fair trial. See Foradori, 523 F.3d at 506. Google
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`ignores how it leveraged Touchstream’s willfulness claims to its own advantage, entering evidence
`
`over Touchstream’s objections by citing its relevance to willful infringement. Prior to trial,
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`Touchstream asked the Court to bar Google from introducing marketing materials that
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`Touchstream prepared in order to highlight various points of difference between Touchstream’s
`
`products and Chromecast. Ex. A, Tr. 4:1–22. Touchstream argued that several of the differences
`
`involved the same Chromecast features that formed the heart of Google’s noninfringement case,
`
`and thus unfairly prejudiced Touchstream, including on the issue of infringement. Compare DTX-
`
`032; DTX-048; DTX-077, at 4–5 with Tr. 70:11–71:21. Google, however, successfully argued that
`
`the evidence was necessary to rebut Touchstream’s willfulness case. Tr. 5:15-25, 11:16–12:4.
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`Google proceeded to introduce the exhibits at trial and continued to refer to them throughout,
`
`including in its opening argument, when it explicitly linked Touchstream’s product comparisons
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`to the issue of infringement, and in closing argument, after willfulness was removed from the case.
`
`See Tr. 70:11–71:21, 314:18–320:18, 1347:5–25.
`
` Meanwhile, Google exaggerates any prejudice it may have suffered. Were Touchstream’s
`
`evidence as inflammatory as Google claims, the Court would not be hearing about this issue for
`
`the first time in a motion for a new trial. See Novo Nordisk A/S, 304 F.3d at 1220 (declining to
`
`grant a new trial in part because party’s inaction suggested that the allegedly prejudicial conduct
`
`was “less inflammatory” than the party maintained). Google’s entire argument presupposes that
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`that a jury that hears willfulness evidence cannot be trusted to decide infringement, invalidity, or
`
`4
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 11 of 28
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`damages. But if that were true, courts would always bifurcate willfulness from those issues.
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`Instead, “bifurcation remains the exception rather than the rule.” Sprint Commc’ns Co. L.P. v.
`
`Charter Commc’ns, Inc., No. CV 17-1734, 2021 WL 982730, at *1 (D. Del. Mar. 16, 2021).
`
`In truth, Google strategically declined to object to Touchstream’s willfulness-related
`
`evidence because Google thought its own such evidence would win favor with the jury. When the
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`Court removed willfulness from the case at the close of evidence, Google continued to argue its
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`side of this same evidence. Having failed to persuade the jury, Google now seeks to blame the
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`Court and Touchstream. That blame is misplaced, and a new trial is not warranted.
`
`C.
`
`Touchstream’s Evidence was Not Unfairly Prejudicial Because it Remained
`Relevant to Google’s Arguments on Damages and Invalidity.
`
`In an effort to bolster its claim of unfair prejudice, Google asserts that Touchstream’s
`
`willfulness evidence “became irrelevant to all surviving issues.” Mot. at 8. This is incorrect.
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`Evidence of Touchstream’s meetings with Google retained substantial probative value on the
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`issues of damages and invalidity, both by Google’s own doing.
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`On damages, Google cannot credibly argue that evidence of the meetings between
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`Touchstream and Google, and Google’s reaction to Touchstream’s patent-pending technology at
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`those meetings, is irrelevant to damages. Importantly, Google’s own counsel continued to argue
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`this evidence in closing argument, after the Court dismissed willfulness from the case, and
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`explicitly encouraged the jury to consider that evidence in deciding damages. Tr. 1346:12–1347:1
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`(referring to the testimony of ex-Touchstream advisor Rajiv Lulla that the technology presented
`
`by Touchstream to Google was “half-baked”). The very evidence Google now complains about is
`
`a fair rebuttal to that narrative on damages that Google continued to press after the Court dismissed
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`willfulness from the case, and is a fair challenge to the credibility of Google’s witnesses who
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`attended those meetings but claim to have no recollection of them (and thus conveniently cannot
`
`5
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 12 of 28
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`confirm or rebut Google’s narrative on damages). In Cham, the sole case relied on by Google for
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`this aspect of its motion, there does not appear to be any such admittedly continued relevance for
`
`the evidence being challenged. See Cham, 685 F.3d at 97–98.
`
`On invalidity, Google ensured that the challenged evidence would continue to be relevant
`
`by arguing that the asserted patents were invalid as obvious over Google’s own “Google TV
`
`System.” Tr. 967:3–22. Google employee Majd Bakar, whom Google touted as the “inventor” of
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`the accused Chromecast technology (Tr. 57:24–58:4, 63:4–9), worked for Google TV when he
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`took multiple meetings with Touchstream to learn about their patented technology.
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`Google’s pursuit of this invalidity theory at trial raises all sorts of questions that are directly
`
`addressed by the evidence Google now challenges as “irrelevant.” If Mr. Bakar’s Google TV team
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`had already invented this technology, why did he take multiple meetings with Touchstream? Why
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`did Google TV, after a sustained period of failing to achieve Mr. Bakar’s alleged vision of casting
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`video, change to its infringing Chromecast strategy right at the time of its multiple meetings with
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`Touchstream? Are the members of the Google TV team credible when they claim no recollection
`
`of these meetings? It is thus of no surprise that in Touchstream’s closing argument, Touchstream
`
`repeatedly discussed Mr. Bakar’s testimony in the context of invalidity issues. Tr. 1320:7–1321:1,
`
`1355:13–17. This is the same type of fact dispute the Federal Circuit has repeatedly found
`
`important in resolving invalidity issues. See. Power-One, Inc. v. Artesyn Technologies, Inc., 599
`
`F.3d 1343, 1352, (Fed. Cir. 2010) (affirming denial of JMOL of obviousness: “Moreover,
`
`[Defendant]'s contemporaneous reaction to [patentee]'s invention, and the industry's reaction,
`
`demonstrate the unobviousness of the invention disclosed in the [asserted] patent.”).2
`
`
`2 See also DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1328–29 (Fed.
`Cir. 2009) (“[W]e agree with the district court that [defendant]'s initial attempt at making a rigid
`pedicle screw without a compression member, together with [defendant]'s prompt adoption of the
`
`6
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 13 of 28
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`D.
`
`Google was Not Unfairly Prejudiced by the Willfulness Evidence Because
`Touchstream’s Willfulness Case was Legally and Factually Sound.
`
`Finally—and respectfully—Google suffered no unfair prejudice because Touchstream’s
`
`willfulness evidence was sufficient to submit the issue to the jury. Touchstream put on evidence
`
`that the leaders of the Google TV team (who not coincidentally became the founders of
`
`Chromecast) enthusiastically pursued, and successfully acquired, knowledge of Touchstream’s
`
`technology, which they were told had a patent pending. See Tr. 102:16–24, 103:5–20, 271:18–
`
`272:3; JTX-299, at 5–8; PTX-659. Touchstream also put on evidence that Google knew that
`
`Touchstream’s patent eventually issued. JTX-143; PTX-335 (Information Disclosure Statement);
`
`PTX-333 (Bakar patent citing Strober); PTX-1076 (Office Action rejecting claims over ’528
`
`patent); PTX-1144 (Patent issued after PTX 1076 Office Action); Tr. 554:2–556:24.
`
`Soon after meeting with Touchstream’s people and learning about its technology, the top
`
`personnel in charge of Google TV dropped that product and pushed Chromecast as its replacement.
`
`See JTX-157, at 4 (“vision doc” development roadmap); JTX-167 (strategic plan for “Eureka,” aka
`
`Chromecast, dated December 2012); Tr. 136:1–21 (Mr. Kenghe describing his transition to
`
`Chromecast project in January 2012); PTX-235, at 3 (Mr. Bakar pitching “a new ‘Eureka’
`
`communication protocol”); Tr. 137:17–138:8 (Ms. Prevé describing her transition to Chromecast
`
`as occurring in late 2011 or early 2012). If these individuals were already developing Chromecast
`
`at the time they met with Touchstream, it is simply not plausible that none of them would
`
`remember meeting with a startup whose technology provided the same functionality.3 Moreover,
`
`
`claimed feature soon after the patent issued, are relevant indicia of nonobviousness.”);
`Heidelberger Druckmaschinen AG v. Hantscho Commercial Products, Inc., 21 F.3d 1068,
`1072(Fed. Cir. 1994) (“[L]itigation argument that an innovation is really quite ordinary carries
`diminished weight when offered by those who had tried and failed to solve the same problem, and
`then promptly adopted the solution that they are now denigrating.”).
`3 The Federal Circuit’s decision in CR Bard is directly on point. See C R Bard Inc. v.
`AngioDynamics, Inc., 979 F.3d 1372 (Fed. Cir. 2020). There, the patentee put on evidence showing
`
`7
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`

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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 14 of 28
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`the uniformity of their lack of memory suggests an effort to conceal, especially when considering
`
`with the timing of their pivot to a casting approach that mimicked Touchstream’s technology.
`
`Respectfully, Touchstream’s evidence was more than sufficient to support a willfulness finding.
`
`See C R Bard, 979 F.3d at 1380. Touchstream was justified in presenting this evidence to the jury.
`
`III. A NEW TRIAL ON DAMAGES IS NOT WARRANTED.
`
`Viewing the trial record as a whole, the damages award was supported by and tied to the
`
`evidence, and Google fails to show otherwise. The Court has already considered and rejected
`
`Google’s primary arguments—that the Quadriga Agreement was not comparable to the
`
`hypothetical negotiation, and that Mr. Chandler did not sufficiently “apportion” royalties under
`
`the Quadriga Agreement. Dkt. No. 225, Pretrial Conf. Tr. 96:11. While Google may disagree with
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`Mr. Chandler’s conclusions, his methodology follows the well-accepted Georgia-Pacific factors,
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`and Google fails to establish prejudicial error or substantial injustice that could justify a new trial.
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`See 583:6-18, 591:4-20, 593:9-19, 630:20-632:22 (presenting a reasonable royalty damages model
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`based on a hypothetical negotiation between Touchstream and Google); Tr. 593:22-596:21, 610:7-
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`15, 615:19-21, 617:10-12, 619:17-19 (Mr. Chandler discussing the impact of the Georgia-Pacific
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`factors on the hypothetical negotiation); see also generally Ex. B, Chandler Demonstrative.
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`Developments at trial only further weakened Google’s failed challenges on damages.
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`Google criticizes Mr. Chandler’s analysis but never explains why the jury’s verdict was itself
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`unjust. Nor does Google address any of the evidence independent from Mr. Chandler’s testimony
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`(1) that the defendant’s director of intellectually was aware of the patent applications prior to their
`issuance, and (2) that the defendant had intentionally copied the patentee’s technology. Id. at 1380.
`Reversing the district court’s grant of JMOL, the Federal Circuit held that “[t]his is sufficient
`evidence to support a jury verdict of willfulness.” Id.; see also WCM Indus., Inc. v. IPS Corp., 721
`F. App'x 959, 970 (Fed. Cir. 2018) (holding that willfulness may be proved with circumstantial
`evidence, including evidence of the defendant’s pre-issue conduct and knowledge).
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`8
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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 15 of 28
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`that the jury was free to find compelling. For example, the jury heard that Touchstream received a
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`lump sum royalty from Vizbee in lieu of a 10% royalty rate, which Mr. Chandler opined was an
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`alternative approach the jury could apply to future revenues Google earned from cast technology.
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`See Tr. 655:17–656:10; PTX-765. Google’s own damages expert, Mr. Martinez, was forced to
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`concede that, were this rate applied to the
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` royalty base he used in his own analysis,
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`Touchstream would be due a royalty of
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`—well beyond the $941.4 million calculated
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`by Mr. Chandler and the $338.7 million awarded by the jury. Tr. 1156:24–1157:20. Finally,
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`Google does not challenge any jury instructions on comparable agreements or apportionment, nor
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`did it ask for any limiting instructions. The jury was free to consider all of the admitted evidence
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`in reaching its verdict, and Google has not shown that this verdict was unjust.
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`A. Mr. Chandler’s Opinions Regarding the Quadriga Agreement Were Proper.
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`The Quadriga Agreement, which Mr. Chandler adjusted for use in his Georgia-Pacific
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`analysis, was sufficiently comparable to be probative of a hypothetical negotiation on damages.
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`“Prior licenses. . .are almost never perfectly analogous to the infringement action.” Ericsson, Inc.
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`v. D-Link Sys., Inc., 773 F.3d 1201, 1227 (Fed. Cir. 2014). The “degree of comparability of [the
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`agreements] as well as any failure on the part of [the expert] to control for certain variables are
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`factual issues best addressed by cross examination and not by exclusion.” ActiveVideo Networks,
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`Inc. v. Verizon Commc’ns, Inc., 694 F.3d 1312, 1333 (Fed. Cir. 2012). Where courts have found
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`insufficient comparability, the licenses demonstrated “no relationship to the claimed invention,”
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`showed no “discernible link to the claimed technology,” involved “vastly different situations,” or
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`pertained to “subject matter . . . not even ascertainable from the evidence.” VirnetX, Inc. v. Cisco
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`Systems, Inc., 767 F.3d 1308, 1330 (Fed. Cir. 2014) (cleaned up). None of these issues are present
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`here, and Mr. Chandler’s use of the Quadriga Agreement was proper.
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`9
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`Case 6:21-cv-00569-ADA Document 286 Filed 10/25/23 Page 16 of 28
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`At trial, Mr. Chandler carefully explained the comparability of the Quadriga Agreement to
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`the hypothetical negotiation. Tr. 623:3–14; see also Ex. B at 49-53. He noted that the agreement
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`involved the same licensor (Touchstream), occurred the same month as the hypothetical
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`negotiation (July 2013), involved the same technology (one of the patents had issued months
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`prior), was a true bargained for exchange, and was not influenced by any litigation. Id. at 623:11–
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`624:7; 633:2-11; 597:6–8; 1124:18–1125:10. Google fails to account for all these similarities in
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`its analysis. See Mot. at 13. Mr. Chandler then explained that the License Fee portion of the
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`Quadriga Agreement was akin to a patent license because it reflected the value of the asserted-
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`patents. Tr. 105:15–25, 106:1–4, 260:19–22, 261:5–10. This is a far cry from the “loose or vague
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`comparability” Google contends occurred here. See SSL Servs. LLC v. Citrix Sys. Inc., 769 F.3d
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`1073, 1093 (Fed. Cir. 2014) (finding the distribution agreement comparable because it involved
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`the same party, relevant technology, and was close in time to the hypothetical negotiation).4
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`Importantly, Mr. Chandler also addressed and accounted for the differences. Tr. 624:7–22,
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`625:16–626:13. For example, he acknowledged that there were parts of the Quadriga Agreement
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`that were not “akin to a patent license,” like the portions of the agreement related to software
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`development work, which would not be included in the hypothetical license. Id. at 624:11–18;
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`625:16–626:13. He also noted that unlike Quadriga, Google has its own technology team, and
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`4 Google also comments that Mr. Chandler did not address why the Quadriga Agreement was