Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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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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`GOOGLE LLC’S REPLY IN SUPPORT OF ITS
`RULE 59 MOTION FOR A NEW TRIAL
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`GOOGLE LLC,
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`Plaintiff,
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`v.
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`Defendant.
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`

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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 2 of 18
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`TABLE OF CONTENTS
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`Page
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`II.
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`TABLE OF AUTHORITIES ......................................................................................................... ii
`TABLE OF ABBREVIATIONS .................................................................................................. iv
`TABLE OF EXHIBITS ................................................................................................................. v
`I.
`PREJUDICE FROM THE WILLFULNESS CASE WARRANTS A NEW
`TRIAL ................................................................................................................................ 1
`TOUCHSTREAM’S FLAWED DAMAGES MODEL REQUIRES A NEW
`TRIAL ................................................................................................................................ 5
`A.
`The Sole License Underlying Mr. Chandler’s Opinions Was Not
`Comparable ............................................................................................................ 5
`Mr. Chandler’s Per-Unit Royalties Method Failed To Apportion ......................... 7
`B.
`Touchstream’s Other Arguments Do Not Save Its Damages Case ....................... 8
`C.
`GOOGLE IS ENTITLED TO A NEW TRIAL FOR ADDITIONAL REASONS ......... 10
`CONCLUSION ................................................................................................................ 10
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`III.
`IV.
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`-i-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 3 of 18
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`TABLE OF AUTHORITIES
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`Page
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`CASES
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`Carrier Corp. v. Goodman Global, Inc.,
`162 F. Supp. 3d 345 (D. Del. 2016) .......................................................................................3, 4
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`Cham v. Station Operators, Inc.,
`685 F.3d 87 (1st Cir. 2012) ....................................................................................................3, 4
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`Edwards v. Sears, Roebuck & Co.,
`512 F.2d 276 (5th Cir. 1975) .....................................................................................................3
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`Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp.,
`879 F.3d 1332 (Fed. Cir. 2018)..........................................................................................5, 7, 8
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`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)..............................................................................................6, 9
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`Guthrie v. J.C. Penney Co.,
`803 F.2d 202 (5th Cir. 1986) .....................................................................................................4
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`LaserDynamics, Inc. v. Quanta Comput., Inc.,
`694 F.3d 51 (Fed. Cir. 2012)......................................................................................................7
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`MacPherson v. University of Montevallo,
`922 F.2d 766 (11th Cir. 1991) ...................................................................................................4
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`Multimedia Pat. Tr. v. Apple Inc.,
`2013 WL 173966 (S.D. Cal. Jan. 16, 2013) ...............................................................................5
`
`Novo Nordisk A/S v. Becton Dickinson & Co.,
`304 F.3d 1216 (Fed. Cir. 2002)..................................................................................................5
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`PerDiemCo, LLC v. Industrack LLC,
`2016 WL 6611488 (E.D. Tex. Nov. 9, 2016) ............................................................................9
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`ReedHycalog UK, Ltd. v. Diamond Innovations Inc.,
`2010 WL 3238312 (E.D. Tex. Aug. 12, 2010) ..........................................................................5
`
`Uniloc USA, Inc. v. Microsoft Corp.,
`632 F.3d 1292 (Fed. Cir. 2011)........................................................................................7, 8, 10
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`-ii-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 4 of 18
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`TABLE OF AUTHORITIES
`(continued)
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`Page
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`United States v. Cook,
`557 F.2d 1149 (5th Cir. 1977) ...................................................................................................3
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`VirnetX, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308 (Fed. Cir. 2014)..................................................................................................5
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`Whitehead v. Food Max of Miss.,
`163 F.3d 265 (5th Cir. 1998) .....................................................................................................2
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`OTHER AUTHORITIES
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`Fed. R. Civ. P. 50 ...........................................................................................................................10
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`Fed. R. Civ. P. 59 .............................................................................................................................5
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`-iii-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 5 of 18
`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 5 of 18
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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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`U.S. Patent No. 8,782,528 (PTX-885)
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`U.S. Patent No. 8,904,289 (PTX-863)
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`asserted patents
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`the ’251 patent, the 528 patent, and the ’289 patent
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`JMOL
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`Mot.
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`judgmentas a matter of law
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`Google’s Rule 59 Motion for a New Trial, Dkt. 276
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`Opp.
`Touchstream’s Opposition to Google’s Motion for a New Trial,
`Dkt. 283
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`Quadriga
`Quadriga WorldwideLtd.
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`Quadriga agreement
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`Amended and Restated Software Developmentand License
`Agreement between Touchstream and Quadriga (PTX-567)
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`SJ
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`Tr.
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`summary judgment
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`Trial Transcript, located at:
`Dkt. 259 (Day 1, pp. 1-244);
`Dkt. 260 (Day 2, pp. 245-647);
`Dkt. 262 (Day 3, pp. 648-1028);
`Dkt. 264 (Day 4, pp. 1029-1310); and
`Dkt. 266 (Day 5, pp. 1311-1376).
`Certain portions of the Trial Transcript 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 293 Filed 11/21/23 Page 6 of 18
`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 6 of 18
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`TABLE OF EXHIBITS
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`Exhibit
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`°528 patent
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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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`Quadriga agreement
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`°289 patent
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`°251 patent
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`-\V-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 7 of 18
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`Rather than meaningfully engaging with Google’s motion, Touchstream’s opposition
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`perpetuates the smoke and mirrors of its trial presentation. Touchstream denies the prejudice from
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`its meritless willfulness case by conjuring a revisionist history. Similarly, in defending its damages
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`expert’s opinions, Touchstream ignores the fundamental deficiencies of those opinions. If the
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`Court does not grant JMOL, it should order a new trial on all issues to cure the manifest injustice.
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`I.
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`PREJUDICE FROM THE WILLFULNESS CASE WARRANTS A NEW TRIAL
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`At trial, Touchstream harped on evidence of supposed willfulness even though the Court
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`had told it enhancement “would be extraordinarily unlikely.” Dkt. 225 at 56:10-17. The result
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`was an unfair trial at which the inflamed jury delivered an outsized verdict. The only remedy is a
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`new trial, and this Court should exercise its broad discretion to grant one.
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`Touchstream used the pretense of a willfulness case to present the inflammatory, highly
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`prejudicial theme that Google took advantage of Touchstream’s entreaties to steal its invention.
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`Touchstream now trivializes its theme, but the evidence pervaded the trial. Touchstream even
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`pressed that theme in closing, after the Court ruled no reasonable jury could find willful
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`infringement. Touchstream appealed to emotion disconnected from the technical issues the jury
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`had to decide. Its tactics served only to confuse, rile, and bias the jury. And they worked, as the
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`$338M award shows. The only effective remedy is a new trial free of that taint. See Mot. at 2-10.
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`Touchstream’s counterarguments do not withstand scrutiny. Touchstream insists (Opp. at
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`7-8) that it presented sufficient evidence of willfulness, but the Court has soundly rejected that
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`argument. Touchstream claims (Opp. at 5-6) that the testimony was also relevant to invalidity and
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`damages. But it did not argue any such connections at trial, and the theories it concocts now are
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`makeweights. Touchstream claims it was showing secondary considerations of non-obviousness,
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`but there was no evidence of copying, and Touchstream did not pursue at trial the “questions” it
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`now suggests Mr. Bakar’s testimony raised. See Opp. at 6. Google’s “contemporaneous reaction”
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 8 of 18
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`to Touchstream’s purported invention (id.) was immaterial because there was no evidence of such
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`a reaction: no Google witness remembered any meeting with Touchstream or any demonstrations
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`of its product. See Mot. at 5-8. As to damages, Touchstream’s willfulness evidence had no
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`relevance to the reasonable royalty. Touchstream cites (Opp. at 5) Google’s argument in closing
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`that Touchstream’s technology was “half-baked” when originally presented to Google, but Google
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`was simply trying (unsuccessfully) to abate the prejudicial evidence that had already come in.
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`Touchstream more broadly suggests (Opp. at 4-5) there was no prejudice because Google
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`leveraged the evidence to its own advantage. But all Touchstream cites are Google’s opening
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`statement and rebuttal evidence when Touchstream continued to press its willfulness claim.
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`Google had no choice but to answer Touchstream’s charges, and it did so with evidence that the
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`Court, in overruling Touchstream’s objections, recognized was relevant to defending against
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`Touchstream’s still-pending claim. See Tr. 5:15-25, 11:16-12:4.
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`Because Touchstream’s willfulness evidence was so pervasive and prejudicial,
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`Touchstream tries to turn the tables and accuses Google (Opp. at 1-3) of forfeiting any objection
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`by not objecting until now. But Google strove mightily to keep Touchstream’s willfulness theory
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`from the jury. Dkt. 130, 184, 225 at 52:1-56:19 (Google’s SJ briefing & hearing). Unfortunately,
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`the Court denied Google’s summary judgment motion and allowed Touchstream to present its
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`willfulness evidence at trial. All Google could do, and did do, was present rebuttal evidence and
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`then move for JMOL at the end of Touchstream’s case. The Court granted JMOL at the close of
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`Google’s case, but it was too late—the damage had been done. In any event, courts can and often
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`do grant new trials based on substantial prejudice regardless of whether the injured party
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`persistently objected at trial. E.g., Whitehead v. Food Max of Miss., 163 F.3d 265, 276-78 (5th
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`Cir. 1998) (granting new trial despite “failure to object to almost all of the statements now
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`-2-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 9 of 18
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`challenged”); Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 286 (5th Cir. 1975) (granting new
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`trial even though “much of the argument was not objected to”).
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`Touchstream suggests (Opp. at 2) Google should have moved to bifurcate willfulness. But
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`Google could not have expected Touchstream’s trial case would center on evidence the Court had
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`already warned was inadequate. Moreover, bifurcation was impractical given the limited available
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`trial time. Even Touchstream admits (Opp. at 5) that “bifurcation remains the exception rather
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`than the rule,” and it cites no cases holding that not requesting it warrants denial of a new trial.
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`Touchstream also blames Google (Opp. at 2-3) for not requesting a limiting or curative
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`instruction. But the Court dismissed Touchstream’s willfulness case only after the prejudicial
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`testimony came in, after the close of Google’s case. Limiting or curative instructions might
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`effectively remedy inappropriate one-off remarks. But given the pervasiveness of the prejudicial
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`evidence here, such an instruction would have been ineffective. Touchstream did not segregate its
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`willfulness evidence in a way that could be neatly remedied; it interspersed it throughout its case.
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`Notably, Touchstream never identifies what instruction could have been given—for good reason:
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`exhaustively identifying the prejudicial testimony would have been both impractical and
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`counter-productive by focusing the jury’s attention on it. Sometimes there is “no good way to fix”
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`improper evidence with an instruction. Carrier Corp. v. Goodman Global, Inc., 162 F. Supp. 3d
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`345, 367 (D. Del. 2016) (granting new trial); see also United States v. Cook, 557 F.2d 1149, 1154-
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`55 (5th Cir. 1977) (same; “Even the best instruction may be insufficient.”). This was such a case.
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`Ultimately, Touchstream’s prejudicial evidence was too emotive, enmeshed, and pervasive
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`to be cured. Courts regularly recognize that new trials are warranted when, as here, there is no
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`effective way to cure the prejudice. See Cham v. Station Operators, Inc., 685 F.3d 87, 98 (1st Cir.
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`2012) (discussed in Google’s motion); Carrier, 162 F. Supp. 3d at 367-69 (granting new trial
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`-3-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 10 of 18
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`where curative instruction was impractical as to one issue and insufficient as to another).
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`Touchstream mistakenly calls Cham an outlier (Opp. at 3)—many other cases are of the
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`same stripe. In MacPherson v. University of Montevallo, 922 F.2d 766, 776-77 (11th Cir. 1991),
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`for example, the court held that a surviving disparate-treatment claim warranted a new trial after a
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`directed verdict on a disparate-impact claim. The disparate-treatment verdict may have resulted
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`from “confusion on the part of the jury (perhaps engendered by the major thrust of the plaintiffs’
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`evidentiary presentation which was devoted to the disparate impact claims), if not expressly the
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`result of sympathy or bias.” Id. In Carrier, the issue of copying was removed mid-way through
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`trial, but the plaintiff continued to highlight evidence of purported copying. The court held a new
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`trial was warranted because “the trial record was complex enough” to make that argument “tip the
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`balance” on infringement “for the wrong reason.” 162 F. Supp. 3d at 367-69.
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`The same is true here. Touchstream presented a David vs. Goliath case, and it used its
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`willfulness claim to inject prejudicial evidence and elicit unwarranted sympathy. Touchstream
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`argues (Opp. at 3) that Cham does not apply because Cham involved evidence irrelevant to
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`surviving claims. But that is no distinction—as explained above, Touchstream’s assertions of
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`relevance are wafer-thin. The Court should order a new trial where Touchstream cannot exploit
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`its meritless willfulness claim and inflame the jury.
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`Touchstream’s authority does not counsel otherwise. Guthrie v. J.C. Penney Co., 803 F.2d
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`202 (5th Cir. 1986), was not a case where the nature of dismissed claims caused irremediable
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`prejudice to surviving claims. Touchstream’s assertion (Opp. at 3) that “Cham flouts Guthrie” is
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`wrong. Cham appropriately distinguished Guthrie, explaining that Guthrie’s approach does not
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`work if “irrelevant evidence is sufficiently prejudicial that a limiting instruction will not be
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`sufficient.” 685 F.3d at 98. That is the case here; the damage was done and the taint irreparable.
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`-4-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 11 of 18
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`Touchstream also cites Novo Nordisk A/S v. Becton Dickinson & Co., 304 F.3d 1216 (Fed. Cir.
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`2002), but that case concerned appellate forfeiture and discrete prejudicial statements not raised
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`in post-trial motions. This case involves pervasive evidence and themes Google has raised in a
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`timely Rule 59 motion and repeatedly sought to remove from the case both before and during trial.1
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`II.
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`TOUCHSTREAM’S FLAWED DAMAGES MODEL REQUIRES A NEW TRIAL
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`Each of the multiple flaws in Mr. Chandler’s methodology independently tainted the jury’s
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`award, warranting a new trial at least on damages. Mot. at 10-19. In claiming the award “was
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`supported by and tied to the evidence,” Touchstream hides behind Mr. Chandler’s Georgia-Pacific
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`discussion. Opp. at 8-9, 14, 18-19. But the Federal Circuit has repeatedly rejected such tactics.
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`An expert cannot “merely address[ ] the Georgia-Pacific factors in light of the facts and then
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`pluck[ ] the [proposed] royalty rate out of nowhere.” Exmark Mfg. Co. v. Briggs & Stratton Power
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`Prods. Grp., 879 F.3d 1332, 1351 (Fed. Cir. 2018). The expert “must not only analyze the
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`applicable factors, but also carefully tie those factors to the proposed royalty rate.” Id. at 1350.
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`Mr. Chander did not do so. He plucked royalty rates out of thin air, failed to apportion to the
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`claimed invention, and failed to tie the Georgia-Pacific factors to his proposed rates.
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`A.
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`The Sole License Underlying Mr. Chandler’s Opinions Was Not Comparable
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`“[L]icenses” must be “sufficiently comparable to the hypothetical license” to support a
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`damages award. VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1330 (Fed. Cir. 2014). Mr.
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`Chandler failed to show the Quadriga agreement was sufficiently comparable. Mot. at 10-16.
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`No matter how much Touchstream may obfuscate (see Opp. at 10-11), Mr. Chandler did
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`1 Touchstream’s other cases involved discrete, unobjected-to statements in closing arguments. See
`ReedHycalog UK, Ltd. v. Diamond Innovations Inc., 2010 WL 3238312, at *3 (E.D. Tex. Aug. 12,
`2010) (prejudice claim limited to closing arguments, and in any event it was “entirely proper”);
`Multimedia Pat. Tr. v. Apple Inc., 2013 WL 173966, at *1 (S.D. Cal. Jan. 16, 2013) (same). As
`explained above, Google fought to keep Touchstream’s willfulness evidence out of the case, and
`this Court has discretion to order a new trial regardless of whether Google objected.
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`-5-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 12 of 18
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`not account for the many differences between the Quadriga agreement and a hypothetical license
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`for the asserted patents. Mr. Chandler superficially acknowledged that differences existed, but his
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`conclusory testimony failed to “account for differences in the technologies and economic
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`circumstances of the contracting parties.” Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197,
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`1211 (Fed. Cir. 2010). And he ultimately adopted the Quadriga agreement’s fee structure
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`wholesale. His threshold failure to show sufficient comparability fatally undermined his opinions.
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`There was no evidence that the hotel-room product Touchstream developed for Quadriga
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`was technically comparable to the asserted claims. The Quadriga agreement does not mention the
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`asserted patents, and there was no testimony from any witness (i) that the software Quadriga
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`contracted for practiced any of the asserted patents or (ii) to support any other claim of technical
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`comparability. Touchstream (Opp. at 12) invokes Mr. Mitschele’s testimony that the licensing fee
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`“was for the software” it was “providing related to the casting product,” Tr. 261:5-10, but that just
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`states the obvious: the fee was for the software developed under the agreement. As he admitted,
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`Tr. 288:11-21, casting is a broad field, and a license for development of a “casting product” in no
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`way establishes that the license was for the technology at issue here—much less that the entire
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`$0.48/unit fee could be imputed to these patents. Moreover, Mr. Mitschele could not speak to
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`technical comparability because he admittedly was not a technical expert. See Tr. 289:17-19.
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`Touchstream cannot recast Mr. Chandler’s “discounts” as an “account[ing] for the
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`differences between the Quadriga agreement and the hypothetical negotiation” or as
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`apportionment. Opp. at 10, 12. No matter how “well beyond” the Quadriga agreement’s rate these
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`“discounts” were, id. at 16, they were entirely unrelated to that agreement (and unsupported, as
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`further discussed below). His 33% discount was solely for “volume.” Tr. 634:20-21. His 50%
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`and 75% discounts supposedly accounted for certain accused products’ features that do not use
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`-6-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 13 of 18
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`Touchstream’s patents. See Tr. 638:7-639:9 (50%), 651:22-654:1 (75%).
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`Mr. Chandler “inflate[d] the reasonable royalty analysis with [a] conveniently selected
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`license[ ] without an economic or other link to the technology” at issue. LaserDynamics, Inc. v.
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`Quanta Comput., Inc., 694 F.3d 51, 79 (Fed. Cir. 2012). A new trial is needed on this basis alone.
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`B. Mr. Chandler’s Per-Unit Royalties Method Failed To Apportion
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`As explained in Google’s motion, Mot. at 16-19, Mr. Chandler’s flawed methodology
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`included so-called “discounts” that were based on the same type of arbitrary rules the Federal
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`Circuit has repeatedly explained “fail[ ] to pass muster.” Uniloc USA, Inc. v. Microsoft Corp., 632
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`F.3d 1292, 1318 (Fed. Cir. 2011) (25% rule “had no relation to the facts of the case”); see also
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`LaserDynamics, 694 F.3d at 69 (rejecting ⅓ apportionment based on “vague qualitative notions”).
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`33% “Volume Discount.” Touchstream does not even attempt to defend Mr. Chandler’s
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`bald and legally insufficient reliance on “other evidence that’s been produced in this case” for this
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`discount. See Opp. at 15. Touchstream instead buries its response in a footnote (Opp. at 16 n.8),
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`saying it was under no obligation to provide the agreements to the jury. Yet even now it fails to
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`identify any agreement that Mr. Chandler reviewed that could justify this number.
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`Instead, Touchstream points to purported “qualitative pressures that induced this [33%]
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`number, including Google’s size and business model for cast, and Touchstream’s strong
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`negotiating position.” Opp. at 15. But Touchstream does not identify any facts mooring supposed
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`“qualitative pressures giving Google a weaker position,” such as Google’s two previous attempts
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`at streaming, its purportedly falling behind competitors, and its purported lack of non-infringing
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`alternatives, Opp. at 15, to this discount. Mr. Chandler “failed to explain how the evidence
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`factored into” this discount, and he “merely addressed the Georgia-Pacific factors in light of the
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`facts and then plucked” 33% “out of nowhere.” See Exmark, 879 F.3d at 1351. “It is not enough
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`for an expert to simply assert that a particular royalty rate is reasonable in light of the evidence
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`-7-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 14 of 18
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`without tying the proposed rate to that evidence.” Id. Making matters worse, Mr. Chandler applied
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`this flawed discount to all accused products, infecting the entirety of his opinion. Mot. at 17.
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`50% “Discount” (Google devices). To defend this “discount,” Touchstream points to the
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`same vague, unsubstantiated “qualitative pressures” discussed above. Opp. at 15. Touchstream
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`also tries to rely on “the fact that these devices had additional functionality not related to the
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`asserted patents,” id., but Touchstream does not dispute that the features of the products in this
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`category vary greatly, rendering Mr. Chandler’s unjustified blanket 50% “discount” unreliable.
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`See Mot. at 17-18. Nor can Touchstream rely on his recitations that “Google charges more for
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`these devices,” “cast was a ‘wow’ factor,” and “cast technology was a ‘foundational building
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`block’ for Google.” Opp. at 15-16. There was no evidence relating these factors to a 50% discount.
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`Touchstream also does not substantiate Mr. Chandler’s cursory claim, unconnected to this case,
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`that “[s]ome” Google agreements “call for a 50 percent reduction when there’s other technologies
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`involved.” Tr. 639:3-9; Mot. at 18. Touchstream’s response to this evidentiary failure is the same
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`insufficient footnote saying it did not need to present any evidence. This compels a new trial.
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`75% “Discount” (third-party devices). Touchstream likewise fails to tie this “discount”
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`to the facts of this case. Touchstream again points to Mr. Chandler’s vague considerations of
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`“additional functionality” and Google “further expanding its cast ecosystem,” Opp. at 16, failing
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`to explain how those factors could support or even be tied to his 75% number. It also ignores that
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`Mr. Chandler admitted he drew this percentage from a purported “typical range” from “across all
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`industries” with which he had experience—not from the facts of this case. Tr. 683:14-21. Such
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`reliance on industries divorced from “a particular hypothetical negotiation or reasonable royalty”
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`for this case is legally improper, Uniloc, 632 F.3d at 1317, and requires a new trial. Mot. at 18.
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`C.
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`Touchstream’s Other Arguments Do Not Save Its Damages Case
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`Touchstream’s manipulation of case law cannot save its arbitrary, unreliable damages case.
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`-8-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 15 of 18
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`As Google showed, Mot. at 17-19, Uniloc and LaserDynamics are on point because, contrary to
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`Touchstream’s assertion, Mr. Chandler did not “methodically explain[ ]” how his “discounts”
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`related to this case. Opp. at 17. Touchstream proffers PerDiemCo, LLC v. Industrack LLC, 2016
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`WL 6611488 (E.D. Tex. Nov. 9, 2016), but there, the court was “not willing to say” the expert’s
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`apportionment was “not supported by facts and data.” Id. at *3. Here, given Mr. Chandler’s failure
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`to connect his opinions to the facts of the case, no such leniency could apply.
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`Touchstream’s claim that Google’s opportunity to cross-examine Mr. Chandler and present
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`rebuttal evidence validated Mr. Chandler’s damages theory (Opp. at 17-18) relies on circular logic.
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`“In setting damages, the jury’s function is to weigh contradictory evidence, to judge the credibility
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`of the witnesses, and to resolve factual disputes,” but to do so the record cannot “rest on faulty
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`assumptions and a lack of reliable economic testimony.” Finjan, 626 F.3d at 1212 (cleaned up).
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`Given Mr. Chandler’s unreliable damages testimony, the jury could not properly set damages.
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`Touchstream fares no better in resurrecting its baseless trial claim that its damages case
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`was “in line” with the Vizbee agreement’s 10% royalty rate as applied to Google’s expert’s royalty
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`base. See Opp. at 18. Touchstream’s counsel manufactured this “check” by asking Google’s
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`expert Mr. Martinez to perform that math—a naked attempt at confusing the jury to sidestep the
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`deficient and exorbitant nature of Touchstream’s damages request. And Mr. Martinez testified
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`that Touchstream’s counsel’s approach was not appropriate. Tr. 1157:10-20.
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`Touchstream’s excuses for highlighting Google’s revenue only compounded the error. See
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`Mot. at 18-19. Touchstream claims it was “necessary” to refer to Google’s large revenues because
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`they were relevant to the Georgia-Pacific factors, Opp. at 18, but this continues the same game of
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`hiding behind that analysis to distract from the unreliable testimony. Roundly rejecting such
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`tactics, the Federal Circuit has explained that presenting billion-dollar revenue numbers “cannot
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`-9-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 16 of 18
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`help but skew the damages horizon for the jury, regardless of the contribution of the patented
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`component to this revenue.” Uniloc, 632 F.3d at 1320. Touchstream cannot excuse its improper
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`inquiries and argument on grounds that Google did not seek a curative instruction. See Opp. at 19.
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`Touchstream misses the point with its “both sides” narrative. See id. at 18-19. It first
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`raised Google’s revenue numbers—not Google. Tr. 612:22-613:22 (Chandler direct) (YouTube
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`revenue); Tr. 1148:11-1150:20 (Martinez cross) (Nest revenue). Google could only try to mitigate
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`the prejudicial effect by asking about them. And while Touchstream’s closing did not expressly
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`recite revenue figures, Touchstream undeniably brought those numbers to the front of jurors’
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`minds. Contra Opp. at 18. It directly pointed to Google’s “revenue plan … from Google Play,
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`YouTube, Chrome, other revenue … like Netflix and Hulu,” Tr. 1329:20-22, and then encouraged
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`the jury to compare its proffered royalty rates to Google’s revenue: “We aren’t even asking for
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`[Google’s] revenue. We aren’t asking for it. … No ad revenue, no content revenue, we just want
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`the 32 cents, 16 cents or 8 cents.” Tr. 1330:12-20; see also Tr. 1331:12-14. This re-emphasis was
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`meant to “skew the damages horizon for the jury.” Uniloc, 632 F.3d at 1320. And it succeeded.
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`III. GOOGLE IS ENTITLED TO A NEW TRIAL FOR ADDITIONAL REASONS
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`First, because the experts were left to testify about the meaning of “server system,” a new
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`trial should be held with an explicit construction that resolves the parties’ dispute about that term.
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`See Mot. at 20. In its response here (Opp. at 19-20) and to Google’s Rule 50(b) motion,
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`Touchstream fails to justify the lack of an explicit construction. Second, as discussed above and
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`in Google’s Rule 50(b) motion and reply, the verdict was also against the great weight of the
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`evidence. See Mot. at 20. Touchstream (Opp. at 20) has no independent response on this point.
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`IV. CONCLUSION
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`If the Court does not grant JMOL to Google, it should order a new trial on all issues, or at
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`least on infringement and damages.
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`-10-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 17 of 18
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`Dated: November 15, 2023
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`Respectfully submitted,
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`By:/s/ T. Greg Lanier, with permission by
`Michael E. Jones
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`Michael C. Hendershot (admitted Pro Hac Vice)
`Tharan Gregory Lanier (admitted Pro Hac Vice)
`Evan M. McLean (admitted Pro Hac Vice)
`Gurneet Singh (admitted Pro Hac Vice)
`JONES DAY
`1755 Embarcadero Road
`Palo Alto, CA 94303
`(650) 739-3939
`Fax: (650) 739-3900
`mhendershot@jonesday.com
`tglanier@jonesday.com
`emclean@jonesday.com
`gsingh@jonesday.com
`
`Tracy Ann Stitt (admitted Pro Hac Vice)
`Jennifer L. Swize (admitted Pro Hac Vice)
`Edwin O. Garcia (admitted Pro Hac Vice)
`John R. Boulé III (admitted Pro Hac Vice)
`JONES DAY
`51 Louisiana NW
`Washington, DC 20001
`(202) 879-3939
`Fax: (202) 626-1700
`tastitt@jonesday.com
`jswize@jonesday.com
`edwingarcia@jonesday.com
`jboule@jonesday.com
`
`Michael E. Jones (SBN:10929400)
`E-mail: mikejones@potterminton.com
`Shaun W. Hassett (SBN: 24074372)
`E-mail: shaunhassett@potterminton.com
`POTTER MINTON PC
`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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`-11-
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`Case 6:21-cv-00569-ADA Document 293 Filed 11/21/23 Page 18 of 18
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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 November 15, 2023. I also
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`hereby certify that all counsel of record who have consented to electronic service are being served
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`with a notice of filing of this document, under seal, pursuant to L.R. CV-5.2(e).
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`/s/ Michael E. Jones
`Michael E. Jones
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