Case 1:13-cv-00919-JLH Document 507 Filed 04/29/23 Page 1 of 3 PageID #: 52262
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT 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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`Plaintiff,
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`v.
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`ARENDI S.A.R.L.,
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`GOOGLE LLC,
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`Defendant.
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`LETTER TO THE HONORABLE JENNIFER L. HALL FROM DAVID E. MOORE
`REGARDING UPDATE ON ISSUE RELATED TO THE PARTIES’
`PROPOSED FINAL JURY INSTRUCTIONS AND PROPOSED VERDICT FORM
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`POTTER ANDERSON & CORROON LLP
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`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`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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`OF COUNSEL:
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`Robert W. Unikel
`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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`Ginger D. Anders
`MUNGER, TOLLES & OLSON LLP
`601 Massachusetts Avenue NW, Suite 500E
`Washington, D.C. 20001
`Tel: (202) 220-1100
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`Vincent Y. Ling
`MUNGER, TOLLES & OLSON LLP
`350 S. Grand Avenue, 50th Floor
`Los Angeles, CA 90071
`Tel: (213) 683-9100
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`Dated: April 29, 2023
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`Case 1:13-cv-00919-JLH Document 507 Filed 04/29/23 Page 2 of 3 PageID #: 52263
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`Dear Judge Hall:
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`April 29, 2023
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`Google writes regarding two updates on the parties’ Proposed Final Jury instructions and
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`Proposed Verdict Form being filed this morning:
`1. The Court’s proposal regarding an effective royalty rate on the verdict form
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`During the hearing in this case on April 28, 2023, the Court raised concerns about Arendi’s
`royalty base calculation, which Google has submitted to the Court is a flawed calculation as to all
`twelve accused apps and four accused devices. See 4/28/23 Trial Tr. (Rough) at 1061:1–19,
`1070:1–13; D.I. 479 (4/23 Letter Motion Regarding Arendi’s New Damages and Willfulness
`Theories) at 2–3; D.I. 496 (4/27 Motion for JMOL of No Damages or, in the Alternative, Nominal
`or Limited Damages) at 3–6. The Court therefore asked the parties to consider whether the Verdict
`Form should ask the jury for a reasonable royalty rate, “to try to avoid any downstream issues.”
`4/28/23 Trial Tr. (Rough) at 1070:8–1071:3.
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`While Google appreciates the Court’s proposal, it believes that asking the jury for a royalty
`rate would be highly prejudicial and confusing and constitute error for several reasons:
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`First, asking the jury for a royalty rate would endorse the methodology of Arendi’s
`damages expert, Mr. Weinstein, over Google’s damages expert, Mr. Kidder. Mr. Weinstein has
`opined on a damages methodology that calculates and uses effective per-unit royalty rates.
`4/26/23 Trial Tr. (Rough) at 589:15–599:3; 615:15–616:6. Mr. Kidder (who has not yet taken the
`stand) took a different approach: he calculated a lump sum royalty that is not tied to accused units
`and did not calculate or use any effective royalty rate.
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`Second, asking the jury for a royalty rate would put a heavy thumb on the scale of damages
`in favor of Arendi. As a practical matter, the jury is highly unlikely to set any royalty rate lower
`than a $0.01 per unit, effectively setting a floor on damages that would be inappropriate and
`inconsistent with Google’s damages theories. The Court would effectively remove from the jury
`its freedom to render a verdict adopting Google’s damages theories.
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`Third, asking the jury for a royalty rate is likely to cause jury confusion because there is
`no evidence of any single “blended” royalty rate that could apply in this case, where there are two
`categories of accused products (apps and mobile devices). Even Mr. Weinstein calculates and uses
`two royalty rates, not one, for those two categories. See 4/26/23 Trial Tr. (Rough) (Weinstein) at
`596:3–25; 4/28/23 Trial Tr. (Rough) (Hearing) at 1070:20–1071:1.
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`Fourth, because an effective royalty rate does not comport with either party’s damages
`theories, there would be heightened risk that any damages verdict might deviate from both parties’
`damages theories. A damages verdict that is unexplainable based on the record might require a
`new trial on damages. See, e.g., Trustees of Bos. Univ. v. Everlight Elecs. Co., 199 F. Supp. 3d
`473, 474 (D. Mass. 2016).
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`Google appreciates the Court’s effort to address Arendi’s failure to apportion its damages
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`request, and is open to considering other alternatives to ensure that, as the law requires, any jury
`award is limited to infringing accused products. It bears repeating, though, that Arendi has the
`burden of presenting sufficient evidence to support a damages award that is both nonspeculative
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`Case 1:13-cv-00919-JLH Document 507 Filed 04/29/23 Page 3 of 3 PageID #: 52264
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`The Honorable Jennifer L. Hall
`April 29, 2023, Page 2
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`and properly apportioned to infringing (not non-infringing) products. Arendi’s failure to do so—
`a product of its failure to account for how its infringement claims changed at summary judgment
`and then on the eve of trial—should not require Google to accede to a likely prejudicial
`compromise means of calculating damages through a royalty rate.
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`2. License or Release Defense – The Samsung Agreement
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`At the April 28, 2023 hearing, the Court also asked the parties to further discuss how to
`address the Samsung Agreement issue—whether that agreement covers accused Google apps on
`Samsung devices—in the Final Proposed Jury Instructions and Final Proposed Verdict Form. See
`4/28/23 Trial Tr. (Rough) at 1117:2–7. As Google does not believe that a per-unit royalty rate is
`appropriate, that proposal does not resolve the Samsung Agreement issue for purposes of the jury
`instructions and verdict form.
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`Although the parties remain at an impasse over how to interpret the Samsung Agreement,
`there seems to be agreement that it would be challenging to instruct and ask the jury about this
`issue without further guidance from the Court. For instance, Arendi proposes two alternative jury
`instructions, the first of which would require a ruling on the law in its favor, and the second of
`which assumes the Court has held that the Samsung Agreement is ambiguous. Either of these
`proposed instructions would be improper without a ruling on whether or not the Samsung
`Agreement is ambiguous. Alternatively, accounting for that open question in a jury instruction (as
`Google has proposed and believes is necessary) might also invite error. A ruling before final jury
`instructions and closing argument on whether or not the Agreement is ambiguous would address
`these concerns. The parties appear to agree that, until answered, that predicate question may
`prevent the jury from being properly instructed. See D.I. 469 (4/20/23 Google letter brief) at 3;
`D.I. 472 (4/21/23 Arendi response letter) at 1–2 (“On the merits of what the Agreement means,
`there are three possibilities: the contract is unambiguous in Arendi’s favor; it is ambiguous; or it
`is unambiguous in Google’s favor. An appropriate jury instruction can be crafted at the charging
`conference to reflect any of those rulings.” (emphasis added) (footnote omitted)).
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`Respectfully,
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`/s/ David E. Moore
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`David E. Moore
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`DEM:nmt/10782914/12599.00040
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`cc:
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`Clerk of the Court (via hand delivery)
`Counsel of Record (via electronic mail)
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