Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 1 of 15 PageID #: 46576
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`CONFIDENTIAL -OUTSIDE COUNSEL ONLY
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`AREND! S.A.R.L.,
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`Plaintiff,
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`V.
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`GOOGLELLC,
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`Defendants.
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`)
`)
`)
`)
`) C.A. No. 13-919-LPS
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`Original Version Filed: May 4, 2021
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`Version Filed: May 11, 2021
`Public
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`_______________
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`PLAINTIFF'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO EXCLUDE
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`PORTIONS OF DR. MARTIN RINARD'S EXPERT REPORT
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`SMITH, KA TZENSTEIN & JENKINS LLP
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`Neal C. Belgam (No. 2721)
`Of Counsel:
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`Eve H. Onnerod (No. 5369)
`Seth.Ard
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`1000 West Street, Suite 1501
`Beatrice Franklin
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`Wilmington, DE 19801
`Max Straus
`(302)652-8400
`SUSMAN GODFREY, LLP
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`1301 Avenue of the Americas, 32nd Floor
`nbelgam@skjlaw.com
`New York, NY 10019
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`eo1merod@skj law .com
`sard@susmangodfrey.com
`bfranklin@susmangodfrey.com
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`mstraus@susmangodfrey.com
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`Attorneys for Plaintiff Arendi S.A.R.L.
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`JohnLahad
`lbituroko-Emi Lawson
`Bmion De Witt
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`Robert Travis Konnan
`Brenda Adimora
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`1000 Louisiana Street, Suite 5100
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`Houston, TX 77002-5096
`j lahad@susmangodfrey.com
`elawson@susmangodfrey.com
`bdewitt@susmangodfrey.com
`tkonnan@susmangodfrey.com
`badimora@susmangodfrey.com
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`

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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 2 of 15 PageID #: 46577
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`CONFIDENTIAL – OUTSIDE COUNSEL ONLY
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`Kalpana Srinivasan
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`ksrinivasan@susmangodfrey.com
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`Kemper Diehl
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101-3000
`kdiehl@susmangodfrey.com
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`Dated: May 4, 2021
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 3 of 15 PageID #: 46578
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`CONFIDENTIAL – OUTSIDE COUNSEL ONLY
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`TABLE OF CONTENTS
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`THE COURT SHOULD EXCLUDE DR. RINARD’S “THAT CAN BE
`SEARCHED FOR” CONSTRUCTION AND RELATED OPINIONS. ............................1 
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`DR. RINARD FAILS TO APPLY THE PLAIN AND ORDINARY MEANING
`OF TERMS GOOGLE DID NOT ASK THE COURT TO CONSTRUE. ..........................5 
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`A. 
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`B. 
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`C. 
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`The Court should exclude Dr. Rinard’s construction of “analyzing, in a
`computer process, first information in a document.” ...............................................5 
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`The Court should exclude Dr. Rinard’s construction of “performing an
`action using at least part of the second information.” ..............................................6 
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`The Court should strike Dr. Rinard’s constructions
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`ARENDI TIMELY FILED THIS DAUBERT MOTION. .................................................10 
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`CONCLUSION ..................................................................................................................10 
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`i
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`I. 
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`II. 
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`III. 
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`IV. 
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 4 of 15 PageID #: 46579
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`Cases
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`CONFIDENTIAL – OUTSIDE COUNSEL ONLY
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`TABLE OF AUTHORITIES
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`Page(s)
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`Align Tech., Inc. v. 3Shape A/S,
`No. 17-1646-LPS, 2020 WL 4926164 (D. Del. Aug. 14, 2020) ....................................3, 4, 6, 8
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`Arendi v. Apple Inc.,
`No. 12-1596-LPS, D.I. 19 (D. Del.) .........................................................................................10
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`Arendi v. HTC Corp.,
`No. 12-01600-LPS, D.I. 152 (D. Del. Dec. 15, 2020) ...............................................................7
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`Cordis Corp. v. Boston Sci. Corp.,
`561 F.3d 1319 (Fed. Cir. 2009)........................................................................................6, 7, 10
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`Daubert v. Merrell Dow Pharms., Inc.,
`509 U.S. 579 (1993) .................................................................................................................10
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`EMC Corp. v. Pure Storage, Inc.,
`No. 13-1985-RGA, 2016 WL 775742 (D. Del. Feb. 25, 2016) ................................................4
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`Personalized User Model, L.L.P. v. Google Inc.,
`No. 09-525-LPS, 2014 WL 807736 (D. Del. Feb. 27, 2014) ..................................................10
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`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.,
`763 F. Supp. 2d 671 (D. Del. 2010) ...........................................................................................5
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`Rules
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`Fed. R. Evid. 702 ...........................................................................................................................10
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`ii
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 5 of 15 PageID #: 46580
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`CONFIDENTIAL – OUTSIDE COUNSEL ONLY
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`Dr. Rinard offers opinions that must be excluded because they advance and rely on claim
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`constructions that impermissibly narrow the Court’s constructions and deviate from the plain
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`meaning of unconstrued claim terms. Further, dozens of paragraphs in Dr. Rinard’s report show
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`that
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`. All of this belonged before the
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`Court, if ever, at Markman. It does not belong before the jury at trial as part of an effort to argue
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`claim scope. Google’s brief tries to distract from Dr. Rinard’s claim construction arguments by
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`asserting that his voluminous
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` “merely buttresses the Court’s
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`construction” of claim terms, (D.I. 338 at 7), but this is nowhere stated in Dr. Rinard’s report. It
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`also makes no sense to
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` in an expert report if it “merely buttresses” the
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`constructions the jury will apply. Google is attempting, through its expert, to persuade the jury to
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`deviate from the Court’s constructions and constrict the plain and ordinary scope of unconstrued
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`claim terms. Both are prohibited under well-settled law.
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`I.
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`THE COURT SHOULD EXCLUDE DR. RINARD’S “THAT CAN BE
`SEARCHED FOR” CONSTRUCTION AND RELATED OPINIONS.
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`Contrary to Google’s argument, there is no dispute that the phrase “that can be searched
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`for” is part of the asserted claims and part of the Court’s construction. There is no dispute that it
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`has definite meaning. Far from asking the Court to ignore this language, as Google contends,
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`Arendi seeks to have its plain and ordinary meaning govern and to preclude Dr. Rinard from
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`arguing for a narrower interpretation at trial.
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`The Court’s construction is clear that there need only be a single determination. As the
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`Court’s construction says, the accused product must “determine if the first information belongs to
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`one or more of several predefined categories of identifying (e.g., a name) or contact information
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`(e.g., a phone number, a fax number, or an email address) that can be searched for in an information
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`1
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 6 of 15 PageID #: 46581
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`source external to the document.” D.I. 143 at 13.1 The plain meaning is that the concluding “that
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`can be searched for” phrase restricts the set of potential “predefined categories” of first
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`information. The “predefined categories” can only consist of “identifying information . . . or
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`contact information . . . that can be searched for in an information source external to the
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`document.” Id.
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`An analogy demonstrates this plain meaning. If the claim language instead stated “to
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`determine if the object belongs to one or more of several predefined categories of paper objects
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`(e.g., cardboard) or plastic objects (e.g., bottles) that can be recycled,” then the only determination
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`to be made would be whether the object belongs to one of the predefined categories of objects that
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`can be recycled.2 If the object belongs to one of those categories, then it can be recycled, because,
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`as the words specify, the predefined categories consist of items that can be recycled. There would
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`be no requirement of making two determinations by first determining whether the object belongs
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`to one of the predefined categories and then determining whether the object can be recycled. The
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`language “that can be recycled” limits the permissible set of predefined categories such that they
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`can only be categories of objects that can be recycled. The same is true here, where the phrase
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`“that can be searched for in an information source external to the document” limits the permissible
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`set of predefined categories of first information.3
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`1 Unless otherwise noted, all emphasis is added.
`2 Google’s analogy to whether a person is “Rob Johnson who lives on School Street” is inapposite
`because it ignores the structure of the Court’s construction. The Court used the phrase “predefined
`categories . . . that can be searched for,” whereas Google’s analogies use entirely different phrases
`with no connection to the meaning of the Court’s construction. See D.I. 338 at 5 n.3. Moreover,
`Google implies that “Rob Johnson” would be a category, regardless of whether any Rob Johnson
`lives on School Street. However, the Court’s construction does not permit a category which does
`not incorporate the modifying element, which in Google’s example is the requirement “who lives
`on School Street.” Google’s example of “1960s American car that has a working engine” is
`likewise inconsistent with the structure of the Court’s construction.
`3 The Court’s use of the term “predefined categories” in its construction further undercuts Dr.
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`2
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 7 of 15 PageID #: 46582
`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 7 of 15 PageID #: 46582
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`In his expert report, however. Dr. Rinard attempts to—
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`. Dr. Rinard argues that the accused products must not only
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`D.I. 271. Ex. 1 {[1} 255, 448. Dr. Rinard’s report
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`10’. 3
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`443-53. Dr. Rinar‘d’s intent to re—argue claim construction to the jury could not be clearer.4
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`Google fails to distinguish Arendi’s cases, which hold that expert opinions must be
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`excluded when they narrow the plain and ordinary meaning of the Court’s claim constructions and
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`seek to re-argue claim construction to the jury. Google asserts that in Align. “the experts construed
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`terms that the coruts previously had ruled should be applied according to their plain and ordinary
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`meanings,” whereas “[h]ere, by contrast, the C01111 explicitly construed the term at issue.” D1.
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`338. This is wrong. In Align, as here, the plaintiff contended that the defendant’s expert “re-
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`construes claim terms inconsistent with the Court’s constructions” and the Court agreed, stating:
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`Rinard’s construction. D.I. 143 at 13. By specifying that the relevant categories of information are
`designated in advance, the Court’s construction is clear that the only determination to be made is
`whether the frrst information belongs to one of them.
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`4 G00 1e claims that “[e]ve1y citation to the prosecution history or inventor testimony fl
` mer‘el buttresses the Court’s construction,” (D.I. 338 at 7), but this is unsupporte .
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`. Moreover, if the Court’s construction did require a separate
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`etermmatron o searc a 1 1i as Gooile claims. then there would be no need for Dr. Rinard’s
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`3
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 8 of 15 PageID #: 46583
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`“The Court agrees with [plaintiff] that [defendant’s expert] improperly narrows the Court’s
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`construction of this claim term and applies that narrowed construction in his analysis.” Align Tech.,
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`Inc. v. 3Shape A/S, No. 17-1646-LPS, 2020 WL 4926164, at *8 (D. Del. Aug. 14, 2020). The Court
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`further held that the expert’s “citations to the Court’s claim construction opinion” in his expert
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`report were insufficient to show that he adhered to the Court’s construction because, in fact, he did
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`not. Id. Despite facially citing the Court’s claim construction, the expert’s opinions went “beyond
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`the Court’s construction” and imposed an additional requirement even though “[t]he Court did not
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`read such a limitation into the claims at claim construction.” Id. The same is true here, where
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`despite
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`.5 Notably, Google’s own invalidity expert did not
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`. See D.I. 345 at 28.
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`Google also fails to distinguish EMC Corp. v. Pure Storage, Inc., which holds that experts
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`are “precluded from testifying that specification and commercial embodiments support their views
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`regarding the plain and ordinary meaning of claim terms” because it is arguing claim construction
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`to the jury. No. 13-1985-RGA, 2016 WL 775742, at *4 (D. Del. Feb. 25, 2016). Dr. Rinard’s report
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`. D.I. 271, Ex. 1 ¶¶ 443-46, 447-48.6 Because he improperly re-
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`5 Google contends that Arendi’s criticism of Dr. Rinard’s construction is inconsistent with
`positions that Arendi’s validity expert, Dr. Earl Sacerdoti, and its inventor, Atle Hedløy, took in
`their depositions, but these claims are wrong and misleading. D.I. 338 at 4-5. Neither Dr. Sacerdoti
`nor Mr. Hedløy has asserted that the Court’s construction requires a second step of independently
`determining whether the first information “can be searched for.” See D.I. 345 at 27-28.
`6 Google advances Power Integrations for the proposition that “disagreement between experts
`regarding the application of a Court’s claim construction . . . are not a basis for excluding expert
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`4
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 9 of 15 PageID #: 46584
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`argues claim construction to advocate for a narrowed construction, Dr. Rinard’s opinions regarding
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`the “that can be searched for” claim term must be excluded.
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`II.
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`DR. RINARD FAILS TO APPLY THE PLAIN AND ORDINARY MEANING OF
`TERMS GOOGLE DID NOT ASK THE COURT TO CONSTRUE.
`A.
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`The Court should exclude Dr. Rinard’s construction of “analyzing, in a
`computer process, first information in a document.”
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`Dr. Rinard’s construction of “analyzing, in a computer process, first information from the
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`document” imposes a limitation—that only first information, and no other text, in a document be
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`analyzed—which appears nowhere in the claim language. D.I. 271, Ex. 1 ¶¶ 454-69. Dr. Rinard
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`narrows the scope of this claim term by requiring not only the analyzing of “first information from
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`the document,” as required by the claim language, but also that there be no analyzing of any other
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`text in the document. Dr. Rinard argues that
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` Id., Ex. 1 ¶ 457. The claim language is not so limited. Nothing in the text specifies
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`that only first information must be analyzed.
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`Google claims that Dr. Rinard’s interpretation is based on the plain meaning of the claim
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`language, (D.I. 338 at 9-10), but that is not what
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`. Instead, Dr. Rinard’s report
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`type of claim construction argument—
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`. D.I. 271, Ex. 1 ¶¶ 454-56 (claiming that,
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`). This
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`—is barred. Cordis Corp. v. Boston Sci. Corp., 561
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`testimony,” but this is not the situation presented here. Dr. Rinard is not offering an opinion on the
`application of the Court’s construction, but re-arguing and narrowing it. Power Integrations, Inc.
`v. Fairchild Semiconductor Int’l, Inc., 763 F. Supp. 2d 671, 695 (D. Del. 2010).
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`5
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 10 of 15 PageID #: 46585
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`F.3d 1319, 1337 (Fed. Cir. 2009) (“it is improper to argue claim construction to the jury because
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`the ‘risk of confusing the jury is high when experts opine on claim construction’”). Dr. Rinard’s
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`opinions are analogous to the opinions this Court struck in Align, where an expert similarly opined
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`“based on his analysis of the prosecution history” that the applicant had narrowed the claims
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`“during prosecution to overcome prior art rejections” such that they no longer covered certain
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`embodiments in the specification. Align, 2020 WL 4926164, at *5.
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`Google separately argues that the Court’s construction of the term “first information”
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`somehow means that the “analyzing” can only encompass “first information” and no other text in
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`a document, but this hollow assertion lacks merit. The Court construed “first information” to mean
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`“text in a document that can be used as input for a search operation in a source external to the
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`document.” D.I. 144 at 1. Nothing in this construction restricts the “analyzing” from encompassing
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`additional text in a document so long as the analyzing also encompasses first information. Not
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`only is there no support for Dr. Rinard’s exclusionary construction of “analyzing, in a computer
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`process, first information from the document” in the claim language, but—had Google sought
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`construction of this term—the intrinsic record would have refuted Dr. Rinard’s interpretation.
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`Google’s brief offers no substantive response to the indication in the specification that “analyzing”
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`need not be limited to “first information.” See D.I. 270 at 8-9. Google’s attempt to introduce this
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`claim construction argument at trial is a backdoor attempt to persuade the jury to construe the
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`claim term more narrowly than its plain and ordinary meaning. It should be excluded.
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`B.
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`The Court should exclude Dr. Rinard’s construction of “performing an
`action using at least part of the second information.”
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`Dr. Rinard also improperly opines that the claim element “performing an action using at
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`least part of the second information” should be given a narrow interpretation that conflicts with its
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`plain and ordinary meaning. Again advancing
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` Dr. Rinard’s
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`6
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 11 of 15 PageID #: 46586
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`report
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` D.I. 271, Ex. 1 ¶¶ 393-96, 400 (characterizing
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`). These opinions must be excluded because they narrow the claim term’s plain and
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`ordinary meaning and seek to argue claim construction to the jury. Cordis, 561 F.3d at 1337.
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`Google fails to confront the reality that nothing in the claim language limits the meaning
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`of “performing an action using at least part of the second information” to exclude actions that
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`involve displaying second information to the user. In the related case Arendi v. HTC Corp., the
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`Court specifically noted that the “action” can consist of “use of second information by display of
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`the second information.” Arendi v. HTC Corp., No. 12-01600-LPS, D.I. 152 at 6 (D. Del. Dec.
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`15, 2020).7 Despite the Court’s indication that the action can use second information by displaying
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`it, Dr. Rinard opines that “
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`.” D.I. 271, Ex. 1 ¶ 396. By placing an unfounded
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`limitation on what can constitute an “action using at least part of the second information,” Dr.
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`Rinard’s narrower construction deviates from the plain and ordinary meaning of the claim and
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`7 Google’s brief all but ignores the Court’s decision, addressing it only in a footnote. Google does
`not confront the Court’s finding that the action can use second information by displaying it. The
`Court’s finding that “the claim here is not one that can be credibly reduced to just a display claim,
`and so it’s not patent ineligible for that reason,” because there are multiple other claim elements
`that must be met does not alter the Court’s finding that the “action” can consist of using second
`information by displaying it. Arendi v. HTC Corp., D.I. 152 at 6.
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`7
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 12 of 15 PageID #: 46587
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`should be excluded. Align, 2020 WL 4926164, at *8.
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`Google attempts to defend Dr. Rinard’s opinion by asserting that his interpretation of the
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`claim language is based on the differentiation in the claims’ use of the terms “display” and
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`“action.” D.I. 338 at 12. But this argument fails. First, while it is true that because both “display”
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`and “action” are used in the claim language they cannot mean the same thing, that in no way
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`precludes an “action” from including the “display” of second information. Second, Google’s
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`argument that “mere display” cannot be the claimed “action” relies on mischaracterizing the
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`actions Arendi has identified as consisting of “mere display” of second information, rather than as
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`composite actions that include the display of second information. Google repeatedly
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`mischaracterizes the actions that Arendi identifies.8 Arendi does not contend that the claimed
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`action ever consists of “mere display of second information,” but rather that the display of second
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`information occurs as part of an overall action. Through Dr. Rinard’s trial testimony, Google seeks
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`to argue—without support in the plain and ordinary meaning of the claim language—that the jury
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`should construe the term “performing an action using at least part of the second information” to
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`exclude actions which Dr. Rinard considers to be “mere displaying of information.”
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`C.
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`The Court should strike Dr. Rinard’s constructions requiring the first
`computer program to “perform an action.”
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`Google’s brief disclaims that Dr. Rinard will opine at trial “
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` D.I. 338
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`at 16. As such, the Court should grant Arendi’s motion and exclude the identified paragraphs of
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`8 Google’s brief claims that one action is “sending an email,” but Arendi has not identified
`“sending an email” as an action using at least part of the second information. Arendi’s technical
`expert has opined that when the “first information” is an email address, the “second information”
`consists of a name and image associated with the email address, and the “action” consists of
`“[c]reating an email with the name and image inserted in the To: field.” D.I. 347, Ex. A ¶ 280.
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`8
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 13 of 15 PageID #: 46588
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`Dr. Rinard’s expert report that offer that opinion.
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`Google claims that “
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`” D.I. 338 at 14. False. Paragraphs 411 to 432 of Dr. Rinard’s report state the
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`opposite. Indeed, the section is titled
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` D.I. 271, Ex. 1 at 127. The ensuing paragraphs decry
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`. For example, paragraph 417
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`states: “
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`Id. ¶ 417; see also id. ¶ 411
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` Because
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`these statements in Dr. Rinard’s report are inconsistent with
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`In its brief, Google asserts that “
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`, they should be excluded.
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`in his report. Google fails to identify a sentence where Dr. Rinard’s report says as much. Instead,
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`,” (D.I. 338 at 15), but this is not stated
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`reading Dr. Rinard’s report
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` See,
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`e.g., D.I. 271 ¶ 411. These paragraphs should be excluded because Dr. Rinard cannot impose a
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`non-existent requirement that the first computer program “perform the action.”
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`9
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 14 of 15 PageID #: 46589
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`III. ARENDI TIMELY FILED THIS DAUBERT MOTION.
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`Google claims Arendi’s motion is untimely and prejudicial, but disregards that this is not
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`a motion to strike but a timely-filed Daubert motion. Dr. Rinard’s expert report discloses that he
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`intends to argue claim construction to the jury, relying on intrinsic record materials, and assert that
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`the Court’s constructions as well as unconstrued claim terms should be narrowed from their plain
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`and ordinary meaning. Such testimony is impermissible under Daubert. Personalized User Model,
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`L.L.P. v. Google Inc., No. 09-525-LPS, 2014 WL 807736, at *1 (D. Del. Feb. 27, 2014) (striking
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`portions of report of another Google expert in this case, Edward Fox, because “expert testimony
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`inconsistent with the Court’s claim construction is unreliable and unhelpful to the finder of fact”);
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`Cordis, 561 F.3d at 1337. The Court’s scheduling order provides that any Daubert motions “shall
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`be made by motion no later than the deadline for dispositive motions.” D.I. 8 (applying to this case
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`the scheduling order set in the related cases); Arendi v. Apple Inc., No. 12-1596-LPS, D.I. 19 at 9.
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`Arendi timely filed this Daubert motion on the deadline for dispositive motions of March 5, 2021.
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`Google also claims Arendi’s motion should be considered under the Pennypack factors.
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`Not so. This motion to exclude expert testimony is appropriately analyzed under Daubert and
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`Federal Rule of Evidence 702. It is not a motion to strike. Excluding unreliable and unhelpful
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`testimony under Daubert is not unfairly prejudicial, but rather an appropriate exercise of the
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`Court’s “gatekeeping role” to “ensur[e] that an expert’s testimony both rests on a reliable
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`foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
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`579, 595, 597 (1993). Dr. Rinard’s opinions are neither.
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`IV. CONCLUSION
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`For these reasons, Arendi respectfully requests that the Court grant this motion.
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`Case 1:13-cv-00919-LPS Document 371 Filed 05/11/21 Page 15 of 15 PageID #: 46590
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`Of Counsel:
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`Seth Ard
`Beatrice Franklin
`Max Straus
`SUSMAN GODFREY, LLP
`1301 Avenue of the Americas, 32nd Floor
`New York, NY 10019
`sard@susmangodfrey.com
`bfranklin@susmangodfrey.com
`mstraus@susmangodfrey.com
`
`John Lahad
`Ibituroko-Emi Lawson
`Burton DeWitt
`Robert Travis Korman
`Brenda Adimora
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002-5096
`jlahad@susmangodfrey.com
`elawson@susmangodfrey.com
`bdewitt@susmangodfrey.com
`tkorman@susmangodfrey.com
`badimora@susmangodfrey.com
`
`Kalpana Srinivasan
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`ksrinivasan@susmangodfrey.com
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`Kemper Diehl
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101-3000
`kdiehl@susmangodfrey.com
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`Dated: May 4, 2021
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`CONFIDENTIAL – OUTSIDE COUNSEL ONLY
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`
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`SMITH, KATZENSTEIN & JENKINS LLP
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`/s/ Eve H. Ormerod
`Neal C. Belgam (No. 2721)
`Eve H. Ormerod (No. 5369)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`eormerod@skjlaw.com
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`Attorneys for Plaintiff Arendi S.A.R.L.
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