Case 1:13-cv-00919-JLH Document 433 Filed 02/09/23 Page 1 of 7 PageID #: 47864
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 13-919-JLH
`
`Original Version Filed: February 2, 2023
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`Public Version Filed: February 9, 2023
`
`))))))))))
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`
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`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`GOOGLE LLC,
`
`Defendant.
`
`LETTER TO THE HONORABLE JENNIFER L. HALL FROM NEAL BELGAM IN
`OPPOSTION TO DEFENDANT’S MOTION TO STRIKE EXPERT OPINIONS
`
`SMITH, KATZENSTEIN & JENKINS LLP
`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
`
`Attorneys for Plaintiff Arendi S.A.R.L.
`
`Of Counsel:
`
`SUSMAN GODFREY LLP
`Seth Ard (pro hac vice)
`Max Straus (pro hac vice)
`1301 Avenue of the Americas, 32nd Floor
`New York, NY 10019
`sard@susmangodfrey.com
`mstraus@susmangodfrey.com
`
`John Lahad (pro hac vice)
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002-5096
`jlahad@susmangodfrey.com
`
`Kalpana Srinivasan (pro hac vice)
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`ksrinivasan@susmangodfrey.com
`
`Kemper Diehl (pro hac vice)
`401 Union Street, Suite 3000
`Seattle, WA 98101-3000
`kdiehl@susmangodfrey.com
`
`Dated: February 2, 2023
`
`

`

`Case 1:13-cv-00919-JLH Document 433 Filed 02/09/23 Page 2 of 7 PageID #: 47865
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`Dear Magistrate Judge Hall:
`
`Google filed an improper and untimely motion to strike the ultimate damages opinion of
`Arendi’s expert witness, Roy Weinstein. D.I. 419. The Court should instead strike Google’s
`motion both for violating the Court’s procedural orders and redundantly seeking to exclude an
`expert opinion that the Court already approved whenit denied Google’s prior Daubert motion.
`
`Google’s eve-of-trial request in fact, a procedurally improper and_substantivelyis,
`
`
`meritless stab at summary judgment. The issue Google presents—whether
`Google’s
`
`user-installed Accused Appsare licensed
`(they are
`not)—is not amenable to pre-trial resolution on a motion to strike. Google failed to make this
`argument at the deadline for summary judgment motions (even though it had full notice of the
`
`a agreement), and thereis no basis to grant a back-door summary
`judgment rulin
`now. In - event, a defense would fail on the merits becausea
`
` 5
`
`Background
`
`Arendi asserts that Google mobile devices and smartphone applications—such as Google
`Calendar, Gmail, Chrome, Contacts, Docs, Hangouts, Keep, Messages, News, Sheets, Slides and
`Tasks—infringe U.S. Patent No. 7,917,843. Judge Stark oversaw discovery and resolved the
`parties’ motions for summary judgment and Daubert motions. D.I. 389, 391, 393. Judge Stark
`granted-in-part and denied-in-part Google’s motion for summary judgmentof non-infringement,
`thereby narrowing the scope of Arendi’s claims. D.I. 393. He simultaneously denied Google’s
`Daubert motion to exclude Mr. Weinstein’s damagesopinions. D-I. 389.
`
`This case was re-assigned to Your Honor on April 26, 2022. D.I. 408. Although expert
`discovery and Daubert motions were already resolved,
`the parties agreed to “limited
`supplementation of damages expert reports (to account for the Court’s summary judgment
`opinions andrecent license agreements).” D.I. 410. The Court accordingly entered a Supplemental
`Scheduling Order governing supplemental expert damages discovery andsettrial for April 24,
`2023. D.I. 412. The Court’s order does not provide any date, nor even contemplate, another round
`of dispositive motions or Daubert motions.
`
`II.
`
`The Court Should Strike Google’s Motion for Violating the Scheduling Order
`
`Google’s motion is improper. The existing Scheduling Order makes clear that “any
`objection to expert testimony” cannot be made after the deadline for dispositive motions “unless
`otherwise ordered by the Court.” D.I. 8; Case No. 13-cv-1595, D.I. 16 § 3(g)(ii).! That deadline
`has come and gone. Google already filed a Daubert motion against Mr. Weinstein’s testimony,
`and the Court rejected it. This Court has nof issued any order permitting Google to file a renewed
`Daubert motion against Mr. Weinstein’s
`supplemental expert
`testimony. The Court’s
`Supplemental Scheduling Order includes no such deadline. DI. 412.
`
`Google falsely claims that it “raises this issue...in accordance with Judge Stark’s
`
`1 Whenthis case wasfiled, the Court adopted the Scheduling Order that it had entered in several
`related cases. See D.I. 8. As such, the original Scheduling Orderin this case appears on the docket
`in the related case Arendi S_A.R.L. v. LG Electronics, Inc., et al., Case No. 12-1595, at DI. 16.
`
`1
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`

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`procedures for motionsto strike.” D.I. 419 at 1 n.1. Not so. Google moved in contravention of the
`procedures Judge Stark set in this case. His Scheduling Order required (and still requires) any
`discovery dispute to be resolved by “contact[ing] chambers. .
`. to schedule a teleconference” and
`only allows“the party seekingrelief” to file a dispute letter /the Court grants the conference. See
`D.I. 8; Case No. 13-cv-1595, D.I. 16 § 3(h). Google never contacted the Court for a teleconference
`and never obtained leaveto file a dispute letter. It filed its motion unilaterally. Because Google
`willfully violated the Court’s procedural orders, the Court should strike its motion.
`
`Ill.
`
`The Court Already Upheld Mr. Weinstein’s Expert Damages Opinions
`
`Google’s motion seeks to relitigate the propriety of expert opinions the Court already
`approved. Google’s motion seeks to exclude Mr. Weinstein’s expert opinions “that calculate
`damages based on Google’s Accused Apps
`(D.I. 420 at 1), but Google
`already had full opportunity to obtain that relief at the deadline for Daubert motions in 2021. Mr.
`Weinstein’s original expert reports included equivalent damages calculations—providingtotal
`
`In his original Expert Report dated August 7, 2020, Mr. Weinstein opined that Arendi’s
`
`damagesfigures both including and excluding GoogleA
`damagesal, including Google Ap:iii Ex. A § 11. Google’s
`
`expert criticized the inclusion of such apps. In his original reply, Mr. Weinstein maintained his
`ultimate damages opinion, but also offered an alternative calculation that excluded them:“ifit is
`
`assumed, as [Google’s expert] claims, that
`are licensed, the total
`
`numberof accused app
`downloads would be reduced to approximately
`. Applying a
`
`
`
`n.42. Google filed a Daubert motion to exclude Mr. Weinstein’s damages opimions on March5,
`2021, focusing that motion on other purported defects. D.I. 286-88. Judge Stark denied the motion
`outright, upholding Mr. Weinstein’s opinions. See D.I. 398 at 11-13.
`
`royaltyat results in reasonable royalty damages of
`
`.” Ex. B at 10
`
`Google’s attempt now to strike Mr. Weinstein’s opinion as to Arendi’s total damages for
`
`including user-installed Google Appsa simply seeks a mulligan. Mr.
`
`Weinstein’s analysis in his supplemental damagesreport 1s no different from what he put forward
`before—and which Google already attempted to exclude. In his Supplemental Expert Report, Mr.
`Weinstein merely updated his previous damagescalculations to include the royalty rate reflected
`
`in theIiscense agreementandto reflecta decrease in infringing unitsas a result ofJudge
`
`Stark’s summary judgment ruling. Mot. Ex. 1 §§ 2-3. Just like the earlier opinions that the Court
`
`upheld, Mr. Weinstein’s Supplemental Report
`provides both a total damages figure
`
`that includes Google Apps
`, and an alternative damages figure
`
`
`) “[i]f it is assumed that
`of accused Google apps are licensed” under
`
`Arendi’s license agreements
`. See id. at 6 n.22. Mr. Weinstein’s offering
`
`of a total damages figure that includes Google Apps
`remainsthe same.
`
`
`
`
`Google could have made the exact same argument it makes now whenit filed its original
`
`Daubertmotion to exclude Mr. Weinstein’s opinions.Ithad full access toa
`
`beginning in 2019. But Google chose notto argue the point in its Daubert motion and doesnotget
`a do-over now simply because Mr. Weinstein updated his analysis to account for a new license
`
`react and the new unit base following the Court’s summaryjudgmentruling.
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`

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`Case 1:13-cv-00919-JLH Document 433 Filed 02/09/23 Page 4 of 7 PageID #: 47867
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`IV.
`
`Google Failed to Raise its License Defense Based on theee
`Summary Judgment and Cannot Seek a Dispositive Judgment Now
`
`Although framed as a motionto strike expert opinions, Google actually seeks a dispositive
`ruling on a license defense that Google failed to raise at the dispositive motion deadline.” Arendi
`
`entereditscnt inApril 2019, andproducedit to Google inJuly 2019—nearly
`
`two years before the dispositive motion deadline in tt_—_—_—_a2021. See Mot. Ex. 3. But Google did
`not move for summary
`judgment underits theory that(he
`as Google cannot nowfile a thinly disguised summary
`judgment brief
`
`and that there is no material issue for the jury to resolve at trial. See, e.g., Almirall LLC v. Taro
`Pharm. Indus. 2019 WL 316742, at *6 (D. Del. Jan. 24, 2019) (denying motion in /imine
`“effectively seeking a merits-based ruling” onanaffirmative defense).
`
`W:
`
`The Samsung Agreement Does Not License Google Apps
`Far from an “unambiguous”license ofall of Google A
`
`See Mot. Ex. 3.
`
`I 3 «00:2
`v. Philles Records, 98 N.Y.2d an 570 (2002). Conversely, “[a] contract is ambiguous if the
`only unambiguousif “onits face [it] 1s reasonably susceptible of only one meaning.” Greenfield
`
`provisions in controversy are reasonably orfairly susceptible of different interpretations or may
`have two or more different meanings.” NV. Y.C. Off-Track Betting Corp. v. Safe Factory Outlet, Inc.,
`28 A.D.3d 175, 177 (1st Dept. 2006). The existence of ambiguity is determined by examining the
`“entire contract and consider[ing] the relation of the parties and the circumstances underwhichit
`was executed,” with the wording to be considered“in the light of the obligation as a whole and the
`intention of the parties as manifested thereby.” Kass v. Kass, 91 N.Y.2d 554, 566 (N.Y. 1998).
`
`A. ThePe Unambiguously Does Not License Google Apps
`
`? Google also never amendedits answerto allege a license under
`*2
`is far too late to do so now. Cf Magsil Corp. v. Seagate Tech., 2010 WL 2710472, at
`July 7, 2010) (denying leave to amend defenses due to “substantial and undue prejudice”).
`
`, andit
`(D. Del.
`
`3
`
`

`

`The contract
`
`provides no support for this argument.
`
`Google’s contrary interpretation
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`Google’s only evidence1s a single paragraph from Mr. Weinstein’s original
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`

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`
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`had no intent to terminate Arendi’s contemporaneous case
`The parties
`
`
`against Google—norhas Google put forward any reason why
`would have wanted to pay
`
`more to benefit
`or Arendi would have wishedto releaseits litigation adversary.
`
`
`Unable to establish an express license or release, Google argues that Google Apps on
`must be licensed because “Arendi’s infringement allegations against Google’s
`
`Accused Apps
`Mot. 2. This argument misrepresents Arendi’s claims against Google. Arendi’s infringement
`contentions do notassert that the accused Google Apps include any hardware components. To the
`contrary, as Google’s own excerpt ofArendi’s claim chart makesclear, the claimed “input devices”
`in the Accused Apps include “hyperlinks that allow a user to enter a user commandto initiate an
`operation.” See Mot. Ex. 6 at 200. Arendi’s license of
`does not mean that
`
`Google Apps—whichdo not include any hardware—are licensed
`
`Claim 23, moreover, is a computer-readable medium claim. It recites a CRM “encoded
`with instructions which, when loaded on a computer, establish processes” comprising the claimed
`elements. ’843 Patent at 12:40-44. Thus, the “instructions”(i.e., the app code) must when loaded
`on a computer, establish processes(i.e., logic) to complete the required tasks. For example, the
`app code must include logic that causes “displaying the document electronically using the first
`computer program”and “providing an input device, configured by the first computer program,that
`allows a user to enter a user command.” ’843 Patent at 12:40-44. But Claim 23 does not require
`actual display of a document or display hardware for doing so, and it does not require a provision
`of an input device. It only requires the stored code that establishes processes for display and input.
`
`B. Alternatively, the Agreement Is Ambiguous and the Jury Must Resolve the Issue
`
`The Court should deny Google’s motion because the Samsung Agreement unambiguously
`does not license or release Google. Alternatively, if the Court finds ambiguity in the Agreement,
`it should also deny Google’s motion because the parties’ contractual intent is a material factual
`dispute the jury must resolve. “[C]onsider[ing] the relation of the parties and the circumstances
`under which [the Agreement] was executed,” (Kass, 91 N.Y.2d at 566), it is clear Arendi ml
`intended to license
`and end the litigation against
`—not silently
`
`include an extra license for
`Google Apps (which would have cost
`more) while
`Arendi wasactively litigating a related case against Google. See Decl. of A. Hedloy. The issue
`cannot be decided on Google’s camouflaged motion for summary judgment, and mustgoto a jury.
`
`

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`Respectfully,
`
` /s/ Neal C. Belgam
`
`
`Neal C. Belgam
`
`
`
`
`
`SMITH, KATZENSTEIN & JENKINS LLP
`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
`
`Attorneys for Plaintiff Arendi S.A.R.L.
`
`
`Enclosures
`
`cc:
`
`Clerk of the Court (via hand delivery)
`Counsel of Record (via electronic mail)
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`6
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