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Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 1 of 45
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`TOUCHSTREAM TECHNOLOGIES,
` INC.
`*
`July 17, 2023
`
`*
`VS.
`*
` * CIVIL ACTION NO. W-21-CV-569
`GOOGLE LLC
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`POST TRIAL MOTIONS HEARING
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendant:
`
`Ryan D. Dykal, Esq.
`Philip Alexander Eckert, Esq.
`B. Trent Webb, Esq.
`Shook, Hardy & Bacon, LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`Gary M. Miller, Esq.
`Samuel G. Bernstein, Esq.
`Shook, Hardy & Bacon LLP
`111 S. Wacker Drive, Suite 4700
`Chicago, IL 60606
`Robert H. Reckers, Esq.
`Shook, Hardy & Bacon LLP
`600 Travis Street, Suite 3400
`Houston, TX 77002
`Tharan Gregory Lanier, Esq.
`Evan M. McLean, Esq.
`Jones Day
`1755 Embarcadero Road
`Palo Alto, CA 943034
`Edwin O. Garcia, Esq.
`Jones Day
`51 Louisiana Avenue, N.W.
`Washington, DC 20001
`Michael E. Jones, Esq.
`Shaun William Hassett, Esq.
`Potter Minton PC
`110 North College, Suite 500
`Tyler, TX 75702
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 2 of 45
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`Court Reporter:
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`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
`Proceedings recorded by mechanical stenography,
`transcript produced by computer-aided transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`

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`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 3 of 45
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`(Hearing begins.)
`DEPUTY CLERK: A civil action in Case
`6:21-CV-569, Touchstream Technologies, Incorporated
`versus Google LLC. Case called for a motions hearing.
`THE COURT: Announcements?
`MR. DYKAL: Yes, Your Honor. Ryan Dykal
`on behalf of Touchstream Technologies, and with me is
`Gary Miller, Sam Bernstein, Phil Eckert, and Rob
`Reckers.
`
`THE COURT: Welcome. Yes.
`Hello, Mr. Jones.
`MR. JONES: Thank you, Your Honor. Good
`afternoon. Mike Jones for Google. Together with
`Mr. Greg Lanier, Mr. --
`THE COURT: Excuse me. I didn't see you.
`I would have said hello to you, Mr. Lanier. Sorry.
`You were turned that way. I apologize.
`MR. JONES: Sorry. I apologize, Your
`
`Honor.
`
`Mr. Evan McLean, Mr. Edwin Garcia,
`Mr. Shaun Hassett; and here from Google itself,
`Mr. Andy Nguyen. And we're ready to proceed, Your
`Honor.
`
`THE COURT: Okay. Ready to take up the
`issue of supplemental damages.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 4 of 45
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`MR. MILLER: Good afternoon, Your Honor.
`Gary Miller for Touchstream.
`And on supplemental damages, as you know,
`it's the Court's role at this stage of the proceeding
`to award damages for any periods of infringement that
`aren't covered by the jury verdict. We believe that
`when you look at the verdict here and you look at all
`the evidence leading up to it, the jury only awarded
`damages through October 2022, the last day when they
`had information on Google's activation numbers.
`So for any periods after October 2022,
`that could not have been covered by the verdict.
`Google's only argument against both
`supplemental damages and ongoing royalty -- they have a
`waiver argument also, which I'll get to -- is they say
`the jury's verdict, when you look at it, it's not a
`running royalty, it's a lump sum.
`The cases where a verdict form doesn't
`expressly state the form of the royalty that the jury
`used, in cases like that it's up to the Court to
`interpret the verdict. You're given wide discretion to
`do that.
`
`So the question is, looking at the
`verdict, looking at all the evidence leading up to it,
`is it more likely or not that the jury based its
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 5 of 45
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`verdict on a running royalty or in a lump sum?
`We think it's clear it was based on a
`running royalty, and this is best seen when you compare
`the jury's verdict amount with the parties' positions
`at the trial.
`Touchstream's expert, Mr. Chandler, he
`primarily based his opinion on a license agreement
`between Touchstream and Quadriga. It was a license
`entered into the same month as the hypothetical
`negotiation; the same licensor, the same casting
`technology, the same economics based on the ad revenue.
`And using activation numbers through
`October 2022, he arrived at a damages number of
`approximately $941 million.
`Google's expert, Mr. Martinez, he used a
`different license agreement between Google and SIMCO, a
`different licensor. It was entered into years after
`the hypothetical negotiation. It was different
`technology. It was used to control the thermostat, not
`cast content. Different economics because no ad
`contents are being shown on the thermostat. And he
`gave an opinion that it would be a lump sum of about
`9 million.
`
`Well, the jury came in with $338,760,000.
`Less than what Touchstream asked for,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 6 of 45
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`about 36 percent of the ask. But still hundreds of
`millions of dollars.
`On the other hand, it's about 40 times
`more than what Martinez -- Mr. Martinez gave his
`opinion of the appropriate damages. It's nowhere near
`the same ballpark.
`We consider this a clear rejection of
`their damages theory. So we think the most plausible
`explanation from the evidence and the verdict is that
`the jury primarily relied on Mr. Chandler's opinion,
`which was a running royalty starting in October --
`ending October 2022.
`They then adjusted it downwards. Which
`we don't know why they did that, but we know they did.
`It is likely based on very effective cross-examination
`on things like apportionment where my colleague
`Mr. Jones emphasized Google's contributions to the
`product, Google's brand, other things that they
`contributed, other features of products.
`He also did a very good job
`cross-examining Mr. Chandler on the Quadriga license
`and pointing out that it's not just transferring IPR
`rights, there were also software development involved
`with it.
`
`So looking at all this and thinking about
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 7 of 45
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`Your Honor's instructions to the jury that they're
`supposed to apportion as following your instructions,
`we think it's most likely they started with the
`analysis from Mr. Chandler, and they moved the number
`downwards and they ended the damages at the activation
`date of October 2022.
`There's no logical way that the jury did
`the opposite, that they started with Mr. Martinez'
`9 million and got up to $338 million. I can't think of
`any plausible basis on which the jury could have
`started at 9 million, a lump sum, and gotten up to
`338 million. And importantly, Google doesn't offer any
`explanation of that at all. So we don't think that
`that's really a plausible way that this -- that this
`happened.
`
`To credit Google's theory -- yes, Your
`
`Honor.
`
`THE COURT: So -- and it may not matter,
`but I remember us discussing, when we were trying to
`come up with a jury charge, this issue. Can you -- can
`you remind me what it was we -- why we decided to go
`with a -- the verdict form in the format that it went
`because I think we recognized that this was an issue as
`we were coming up with the verdict form, didn't we?
`There was this stress between how would
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 8 of 45
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`we know. And why did we do it the way we did it? I
`don't remember.
`MR. MILLER: Your Honor, I wasn't in the
`charge conference. My colleague, Ms. Israel, did that.
`I don't remember. I do know that you ended up charging
`the jury that they could decide on either a running
`royalty or a lump sum. I don't remember why we didn't
`ask them to decide.
`THE COURT: What I'm wondering is, there
`was no -- I think we did not include a place for them
`to give a running royalty rate, correct?
`MR. MILLER: That was not in the verdict
`
`form.
`
`THE COURT: And what I'm trying to
`remember is why we didn't do -- you know, that would be
`an indicator that they wanted a running royalty, if
`that answer was in there; and I just don't remember why
`we didn't do it.
`MR. MILLER: Yeah. I'm sorry. I can't
`help on that.
`Your Honor, to credit Google's theory,
`though, on the lump sum, you'd have to believe that the
`jury rejected Google's argument that the patents were
`invalid. They rejected Google's arguments about
`infringement. They completely rejected Mr. Martinez'
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 9 of 45
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`damages number, awarding almost 40 times more than
`that. But for some reason, they decided, we're going
`to take one piece of that damages opinion, the form of
`royalty, and we're going to apply that and just throw
`out everything else.
`And they did all this despite that Google
`really didn't develop this lump-sum idea well during
`trial. Mr. Martinez never explained to the jury that
`this damages meant through the life of the patent. He
`never said, you know, if you award a lump sum, this
`means this goes out forever. He never said this --
`there would be no further payments for infringement
`going out to 2031 when the first patent expires. He
`never talked about that.
`And then Google didn't mention the form
`of royalty at all during closing arguments. Mr. Dykal
`did for Touchstream. We talked -- he talked about the
`running royalty and how to go about calculating it.
`But Google never talked about that.
`So they would have -- the jury would have
`had to reject all these arguments, all these arguments
`from Google, but on their own, without any help from
`closing arguments or really their expert, pull out this
`lump-sum idea on their own.
`We just don't think that's credible.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

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`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 10 of 45
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`It's not likely that that's what happened.
`Google raises two counter arguments.
`First one: They say, well, it's -- they awarded a
`round number, and so that means it must be a lump sum.
`First, there's no case law saying that.
`Zero case law supports that. Second, this is not
`really a round number. They awarded $338,760,000. So
`they rounded -- if they rounded, it was to the nearest
`$10,000; which considering the size of the award, is
`pretty precise. And third, there's no reason to
`believe that a round number means a lump sum, or that a
`precise number means -- doesn't mean a lump sum.
`So Mr. Martinez himself, when he was
`calculating a lump sum, he did it down to the dollar.
`His opinion was 8,975,275. So this factor, we think,
`Your Honor, is neutral.
`Google's second argument: They say that
`they presented evidence that Google preferred a lump
`sum. And it's true, they did present some evidence to
`that effect, but there was also evidence to the
`contrary that the jury heard.
`Google says in its brief, well, all the
`licenses we produced were a lump sum. Well, they
`didn't show those to the jury. And the jury did see
`other evidence that Google entered into running royalty
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

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`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 11 of 45
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`agreements, including in connection with Chromecast.
`So that's PTX-1168, which is an e-mail
`exchange that we got that was discussing a license.
`And their expert admitted on cross-examination that
`that e-mail indicated to him that it was a running
`royalty for that license.
`Another point on this. With the jury --
`with all the evidence, there was so much evidence about
`Google's attempts in the past to try a casting product.
`They tried two times. They spent a ton of money on it
`and they were unsuccessful and they were falling behind
`competitors so they enter into this license.
`Well, would they really -- at the
`beginning of this, having failed two times with this
`venture, would they have really written a check to
`Touchstream for $338 million at that point, without any
`idea whether this product was actually going to sell?
`The product turned out to be one of the
`most successful products in the history of TV, maybe
`the most successful product, but they didn't know that
`at the beginning. Would it really be reasonable to
`think they would have wrote a check that big as a lump
`sum? It doesn't make any sense in context of the
`evidence.
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`And then there was substantial evidence,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

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`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 12 of 45
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`too, that Touchstream preferred a running royalty. All
`of the license agreements that Touchstream entered into
`relating to its product were running royalty,
`especially the Quadriga agreement that Mr. Chandler
`relied on. Google points to the Vizbee agreement with
`Touchstream, but that wasn't really -- that was a
`settlement agreement, and it was a lump sum in lieu of
`a royalty of 10 percent.
`So considering all this, we think the
`weight of the evidence supports a preference for a
`running royalty; but at best, for Google, when
`interpreting the verdict, it's a neutral factor.
`Finally, just briefly on waiver before I
`get to the amount, Your Honor, they say we waived by
`not raising this soon enough. We don't think that's
`accurate. In the complaint, we asked for all available
`equitable relief; that's what we're asking for now,
`equitable relief.
`We requested it in the first amended
`joint pretrial order. That's Docket Entry 231 at Page
`7. We filed this motion within the 28-day deadline.
`And this Court specifically has rejected exactly the
`same argument last year in the Jiaxing Super Lighting
`case.
`
`Other courts have recognized the same
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

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`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 13 of 45
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`principle. Federal Circuits repeatedly rejected waiver
`arguments like this.
`They also say we waived by not asking
`them to supplement activation numbers prior to trial.
`They produced through October 2022. They haven't
`produced anything since. They said, well, you didn't
`ask.
`
`Two responses to that. The first is we
`didn't need to ask. They -- Google had a duty under
`the federal rules to supplement its discovery as
`information became available. So either the
`information on new activations wasn't available at
`trial, which is possible; or Google didn't abide by its
`duty to supplement.
`But either way, that's not a reason for
`them to gain an advantage now and basically get to use
`the patent -- infringe on the patent for over a year
`without any compensation to Touchstream.
`Second point on this. There's no reason
`to believe that had we asked, Google would have
`produced it in time. It took months and motions to
`compel to get any data in the first place, and even now
`they've produced nothing. Even though in August of
`2023, after the verdict, we asked for updated
`activation numbers and Google said yes; and they say in
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 14 of 45
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`their -- in their brief, Page 11, Footnote 1, they're
`working diligently to pull the data. They still
`haven't produced anything, months later.
`So there's no reason to believe that,
`say, if we'd asked in May, can you update the numbers,
`that we would have gotten it in time to use in the
`trial anyway.
`So for all those reasons, we think
`supplemental damages are appropriate because it's for a
`period that the jury didn't award relief. So I'll turn
`to the amount.
`The starting point is the jury's damages
`award. When a rate's not apparent on the face,
`sometimes it is, as you point out, sometimes it's
`apparent on the face of the verdict, the rate -- it's
`not in this case -- courts then will imply a royalty
`based on the verdict and the evidence.
`So a good example of this is Coffee
`versus Google. It's an Eastern District of Texas case,
`2017. In that case, like here, the royalty wasn't
`apparent on the face of the verdict. The jury awarded
`a number neither side had asked for. The Court then
`implied a royalty based on the jury award and the user
`base.
`
`And that's what we tried to do here. So
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 15 of 45
`
`15
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`our expert, Mr. Chandler, submitted a declaration. He
`took the jury award, which was roughly 36 percent of
`what Mr. Chandler had opined on the royalty, and he
`then applied it across each of the three products and
`reduced the royalty accordingly. So he arrived at
`$5.53 for dongles, $2.76 for other Chromecast-enabled
`devices, and $1.38 for third-party devices.
`We submit, Your Honor, this is a logical,
`reasonable way to approach supplemental damages. It's
`consistent with Coffee and other cases that we cite.
`And, most importantly, Google doesn't offer any
`alternative. They complain about rounding, but they
`don't recalculate the numbers. They don't say, you
`know, Here's another way to look at it and you ought to
`do it this other way. They don't offer you any
`suggestions, and I don't think there is a better way of
`doing it.
`
`I'll turn to -- I'll turn to an ongoing
`royalty, unless Your Honor would like --
`Okay. As to the ongoing royalty, as you
`know, absent egregious circumstances, that's
`appropriate when there's no injunction in place. We're
`asking that those numbers that I just mentioned be
`increased by 50 percent post final judgment.
`The Federal Circuit has said when you're
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 16 of 45
`
`16
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`thinking about the rate for an ongoing royalty, it's
`really like a new hypothetical negotiation at the time
`of the final judgment, and so you have to consider
`changes in circumstances.
`One of the changes in circumstances is
`that Touchstream prevailed at trial. The Federal
`Circuit has recognized this as a substantial shift --
`I'm quoting "substantial shift" -- in bargaining power.
`That's the XY case and Amado case. For this reason,
`district courts, they've recognized this Creative
`Internet case. Quote, The Federal Circuit has
`instructed that post verdict infringement should
`typically entail a higher royalty rate than a
`reasonable royalty at trial.
`In this case there's two other reasons
`for an increase. First, the -- since the trial, we've
`prevailed over three IPRs. We won three IPR
`challenges. Courts have recognized that that is a
`reason to increase the royalty, the Packet Intelligence
`case from 2018. And second, there was evidence --
`we've presented evidence through a declaration of
`Mr. Chandler of Google's plans -- this is evidence that
`was not presented to the jury -- of Google's plans to
`continue to embed cast technology into new products
`like cars, hotel rooms, and airplanes.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 17 of 45
`
`17
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`So given all of this, Touchstream is in a
`stronger bargaining position now than it was at the
`time of the hypothetical negotiation. Infinity of
`Texas versus BMW found courts commonly award ongoing
`royalties up between 33 to 50 percent higher than
`awarded at trial in the verdict. We think the higher
`end of this 50 percent is appropriate in this case,
`given that it's not just that Touchstream prevailed at
`trial, but we also overcame the IPRs and have this new
`evidence that Google is doubling down on casting
`technology.
`
`All of this is supported by a detailed
`Georgia-Pacific factor analysis by Mr. Chandler, and it
`goes through it in detail. I won't cover those unless
`you'd like.
`
`Google's suggestion is to -- is that it
`should be a reduction. Google doesn't want any -- it
`doesn't even want to stay the same. Google says it
`should be a lower rate because it might win on appeal.
`It says there's a 14 percent chance of winning on
`appeal, so it should be reduced by that amount.
`Your Honor, there's no case supporting
`this. None. We found one case that addressed it. I
`don't know if anyone else has ever raised it, but in
`Datatreasury, Eastern District of Texas in 2011,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 18 of 45
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`addressed this and rejected it, and, frankly, it makes
`no sense if an appeal automatically meant that the
`royalty goes down, the Federal Circuit wouldn't
`instruct the parties -- or the courts to have a higher
`royalty post verdict than pre-verdict. We don't think
`that argument holds water.
`That's all I have on that. I have
`comments on prejudgment interest which I could go into
`or wait.
`
`THE COURT: I don't need it.
`MR. MILLER: Okay. Thank you, Your
`
`Honor.
`
`MR. JONES: If it please the Court, Your
`Honor, Mike Jones for Google.
`If we could, could we go to Slide 6 first
`to start out here?
`Your Honor, you asked a question, and I'd
`like to try to address the question you asked about,
`you know, what was done at the charge conference
`concerning the verdict form. And I was not at the
`charge conference, and I -- so I can't answer that
`question as to what was done at the charge conference
`in connection with what you and the other attorneys who
`were there that discussed.
`I can tell you, though, our perspective
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 19 of 45
`
`19
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`on why we wanted the verdict form this way. The
`question that was asked is, What is the total amount of
`damages you find for Google's infringement of the
`asserted patents?
`There was no submission ever of any
`question or inquiry to the jury about whether or not
`this should be a running royalty or whether it should
`be a lump sum. If such a recommendation and such a
`request had been made, we would have objected to it
`because it is clear that we took the position both in
`motion practice as well as before the jury that the
`evidence in this case, the evidence in this case
`totally supported a lump sum and was not supportive of
`a running royalty.
`We in this case viewed the evidence as
`establishing that as a matter of law. What was that
`evidence that the Court had before it and the jury had
`before it concerning whether this should be a lump-sum
`royalty or a running royalty? The evidence that was
`before the jury was that there were three software
`development joint ventures that concerned these three
`patents, the three patents-in-suit.
`None of those ever mentioned in any way
`these three patents. None of those ever in any way was
`there testimony from any technical expert or any
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 20 of 45
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`20
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`witness in the whole trial that said, Look. The
`products that resulted from these development
`agreements actually practiced the patents-in-suit.
`There was never, there was never
`testimony that showed the patents-in-suit were in these
`products.
`
`Now, those agreements, although they were
`associated by Mr. Chandler with these patents, those
`agreements never mention the patents. There was no
`technical expert that shows these agreements are
`applicable to the patented technology.
`Now, the only license agreement that was
`ever done concerning these three patents was the Vizbee
`license agreement, which was a lump-sum settlement of
`litigation.
`
`So with regard to what was the evidence
`about what type of agreements had ever been done
`concerning these patents, there's only one that named
`them. That's Vizbee. It was a lump sum, and these
`other three that had this $0.48 licensing fee that all
`of Mr. Chandler's calculations were based upon, there's
`no association of them whatsoever with the patents, and
`they certainly are nothing like the patent license
`agreement that you would have in connection with a
`hypothetical negotiation.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 21 of 45
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`So that's the Touchstream side of the
`record before you. That is what the record showed us
`about what happened with regard to these three patents.
`What side of the record do we have with
`the Google? We had with Google that both experts,
`Mr. Chandler and Mr. Martinez, testified clearly that
`Google would have a strong preference at this
`negotiation for a lump-sum royalty. What else do we
`have? We have the fact that both experts stated they
`had reviewed every license that Google had produced
`that was relevant in this case, both of them had
`reviewed them, and they both agreed that these
`licenses, this evidence reflected the strong preference
`by Google, and that they had all been lump sums.
`Now, that was the evidence in the case.
`We had experts take different opinions based upon that
`evidence, but our position has been consistently, not
`only in motion practice, not only before the jury and
`before this Court and now, that the evidence in this
`case reflects that this was a lump sum under what has
`been proven.
`
`And, Your Honor, the law is clear that
`when we look at this verdict, it's in your discretion
`to interpret this verdict and what it is. When we look
`at what we asked the jury, what we asked the jury was,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 302 Filed 01/16/24 Page 22 of 45
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`22
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`What is the total amount of damages you find for
`Google's infringement of the asserted patents?
`The burden of proof, we both agree in our
`briefing, was upon the plaintiff. There is nothing in
`here that tells the jury, Oh, we're excepting out a
`time period. There's nothing in here that says there's
`any limitation on the total amount of damages that
`would be awarded for the infringement. There is
`nothing in here that talks about time, that simply
`additional language that the jury is trying -- excuse
`me, that Touchstream is trying to put into the verdict
`form that was not there when the jury answered the
`question.
`
`Now, I'd like to start out -- besides
`answering your question, I'd like to start out by just
`telling the Court that I think we all agree upon what
`the law is as you make this decision.
`What we agree upon is that you really
`wear two hats when you make

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