Case 1:13-cv-00919-JLH Document 439 Filed 02/16/23 Page 1 of 3 PageID #: 47967
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 13-919-JLH
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`JURY TRIAL DEMANDED
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`)))))))))
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`ARENDI S.A.R.L.,
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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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`LETTER TO THE HONORABLE JENNIFER L. HALL FROM
`DAVID E. MOORE IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
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`OF COUNSEL:
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`Robert W. Unikel
`Michelle Marek Figueiredo
`John Cotiguala
`Matt Lind
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Tel: (312) 449-6000
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`Robert R. Laurenzi
`Chad J. Peterman
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 318-6000
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`Dated: February 9, 2023
`10595067 / 12599.00040
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`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`abrown@potteranderson.com
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`Attorneys for Defendant Google LLC
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`PUBLIC VERSION
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`Public Version Dated: February 16, 2023
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`Case 1:13-cv-00919-JLH Document 439 Filed 02/16/23 Page 2 of 3 PageID #: 47968
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`Dear Judge Hall:
`To avoid confusion and potential error at trial, Google properly moves to strike Mr.
`Weinstein’s damages calculations for Accused Apps on
` devices, which unambiguously
`are precluded by the
` Google correctly presents this issue now, as the
`interpretation of the unambiguous
` “is a legal matter for the court” and Mr.
`Weinstein recently made clear that he intends to pursue these damages unless the Court orders
`otherwise. 805 Third Ave. Co. v. M.W. Realty Assoc., 448 N.E.2d 445, 451 (N.Y. 1983).
`I. Google’s Motion Is Procedurally Proper
`Google brings its motion to strike at the earliest reasonable opportunity following
`supplemental expert discovery and mediation (which concluded on December 21, 2022), when it
`became clear that Mr. Weinstein would improperly calculate damages based on Accused Apps on
`licensed
` devices, ignore his own alternative calculations excluding those damages, and
`wait for the Court to order otherwise. (Mot. Ex. 2 ¶ 10, Mot. Ex. 4 at 337:24–338:9.) Before then,
`Google expected that Arendi and Mr. Weinstein would voluntarily rely only on Mr. Weinstein’s
`alternative calculations and thus avoid the need for Court intervention. Now that the opposite is
`clear, Google promptly raises this legal issue; the Court’s scheduling order did not provide any
`other procedure or timetable for doing so. Arendi’s suggestion that the Court should ignore this
`live dispute and submit a pure question of law to the jury is baseless and imprudent.
`Arendi points to the wrong source for Judge Stark’s prior briefing procedures for motions
`to strike. These procedures were not addressed in the scheduling order Arendi cites, but in Judge
`Stark’s prior chambers procedures requiring that a motion to strike be accompanied by a three-
`page letter, opposed by a five-page letter, and supported in reply by a two-page letter. This is the
`procedure the parties previously followed when moving to strike expert reports, which Google
`therefore adopted for its present motion – as did Arendi in its opposition letter. (See D.I. 237, 238,
`242, 243 (following this procedure for a prior motion to strike expert opinions), 426 (filing five-
`page opposition letter).) Arendi also misreads the Almirall case in claiming that Google is
`somehow too late in presenting this issue to the Court. There, the Court denied a motion in limine
`not because it was too late, but because “[f]urther development of the evidence . . . [was]
`necessary,” and it denied the motion “without prejudice to reassertion in a properly supported
`motion at the close of evidence, at the end of trial, or in a posttrial motion.” Almirall LLC v. Taro
`Pharm. Indus. LTD, C.A. No. 17-663-JFB-SRF, 2019 WL 316742, at *6 (D. Del. Jan. 24, 2019).
`Here, construction of the
` is a straightforward legal issue of contract
`interpretation requiring no development of the factual record. Ignoring this issue would leave a
`purely legal question for the jury and create confusion and error at trial. Google therefore properly
`presents this issue now, well in advance of trial.1
`II. Mr. Weinstein May Not Calculate Damages for Accused Apps on
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`The
` unambiguously covers
` necessary for infringement and damages, and thus precludes Mr. Weinstein’s
`contrary calculations. Notably, Arendi’s opposition letter totally ignores
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` and (c) is indisputably required for any alleged infringement here, as
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` Devices
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`1 If the Court prefers, it certainly can consider Google’s motion as a motion in limine, which
`unquestionably is permitted before trial. This particular motion warrants early consideration.
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`Case 1:13-cv-00919-JLH Document 439 Filed 02/16/23 Page 3 of 3 PageID #: 47969
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`The Honorable Jennifer L. Hall
`February 9, 2023, Page 2
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`it includes the code for the very functionalities accused by Arendi. This alone requires Mr.
`Weinstein to omit damages for Accused Apps on
` devices.
`Arendi invents a temporal limitation to exclude Accused Apps that a user installs after
`purchasing a
` device. But, s
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` (Mot. Ex. 3 § 1.6
`(emphasis added).) Arendi’s made-up limitation further ignores, and does not apply in light of the
`fact, that most of the Accused Apps and the Android OS come preinstalled on
` Android
`Devices. Despite their burden to prove damages, Mr. Weinstein and Arendi offer no evidence that
`Accused Apps are downloaded to
` devices after initial sale (let alone in what quantities),
`despite Arendi’s representation that it does not accuse preinstalled Accused Apps (though Mr.
`Weinstein’s calculations are not so restricted).
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`Arendi argues that the
`here because the Agreement
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` does not impact potential infringement liability
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`Arendi’s belief that Google must supply extrinsic evidence on these points is wrong and forgets
`that “[c]onstruction of an unambiguous contract is a matter of law, and the intention of the parties
`may be gathered from the four corners of the instrument and should be enforced according to its
`terms.” Beal Sav. Bank v. Sommer, 865 N.E.2d 1210, 1213–14 (N.Y. 2007).
`Arendi’s after-the-fact, self-serving declaration from Mr. Atle Hedløy, Arendi’s CEO, has
`no effect.
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`Respectfully,
`/s/ David E. Moore
`David E. Moore
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`DEM:nmt/10595067 / 12599.00040
`cc:
`Clerk of the Court (via hand delivery)
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`Counsel of Record (via electronic mail)
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