Case 1:13-cv-00919-JLH Document 513 Filed 05/01/23 Page 1 of 6 PageID #: 52376
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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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`))))))))))
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`ARENDI S.A.R.L.,
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`ARENDI’S OPPOSITION TO GOOGLE’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW OF NO DAMAGES OR, IN THE ALTERNATIVE, NOMINAL DAMAGES
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`SMITH, KATZENSTEIN & JENKINS LLP
`Neal C. Belgam (No. 2721)
`Daniel Taylor (No. 6934)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`dtaylor@skjlaw.com
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`Attorneys for Plaintiff Arendi S.A.R.L.
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`Of Counsel:
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`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: May 1, 2023
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`

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`Case 1:13-cv-00919-JLH Document 513 Filed 05/01/23 Page 2 of 6 PageID #: 52377
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`The Court should deny Google’s motion for judgment as a matter of law of no damages,
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`or in the alternative nominal damages, because Arendi’s damages are well-supported by the record
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`evidence and Google’s scattershot arguments to the contrary all fail.
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`I.
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`ARGUMENT
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`A.
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`THERE IS STRONG EVIDENTIARY SUPPORT FOR ARENDI’S
`DAMAGES CLAIM.
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`i.
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`The record evidence contradicts Google’s claims that the unit data
`includes non-infringing units.
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`Google claims without any record evidence that Mr. Weinstein “relied on data representing
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`all downloads of the Google apps and all sales of Google devices between late 2017 and patent
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`expiration (November 10, 2018)” rather than only downloads and devices running Google’s
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`contemporaneous Android operating system. Mot. 3. D.I. 496. This claim is not only unsupported
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`by the record evidence, but directly contradicted by it.
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`First, there is no question that all sales of the accused devices were running versions of
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`Android 8.0 and later when sold. The Accused Devices are the Pixel 2, Pixel 2 XL, Pixel 3, and
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`Pixel 3 XL. The first of these devices was released for sale in the U.S. on October 19, 2017, after
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`Google had launched Android 8.0 in August 2017. As such, there is no factual basis on which to
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`contradict Mr. Weinstein’s stated understanding that a “hundred percent” of the Accused Devices
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`“had Android 8 or Android 9 on them” when sold based on “the materials that were produced by
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`Google in this case.” Trial Tr. 614:23-615:10. There is no record evidence otherwise; nor could
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`there be.
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`Second, with respect to the Accused Apps, there is likewise no record evidence that
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`undermines Mr. Weinstein’s conclusion that the download data Google produced accurately
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`reflects the number of infringing units. Notwithstanding Google’s newfound claims—raised for
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`the first time during trial—that the download data includes downloads to devices running older
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`2
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`Case 1:13-cv-00919-JLH Document 513 Filed 05/01/23 Page 3 of 6 PageID #: 52378
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`versions of Android, there is no record evidence that supports this attorney argument. And, to the
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`contrary, Google’s own corporate representative confirmed that Google did not have any counter
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`facts to offer about the download data. During his trial testimony, Google’s corporate
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`representative was asked about the download data directly:
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`Q. So your testimony is that based on what you know, Mr. Weinstein is off by -- he
`pretty much missed it completely?
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`A. If it is all the downloads for all -- every version. Again, he didn't know either.
`So I think until we know what that data represented.
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`Q. So you don’t have that data?
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`A. I do not. I’m not part of the discovery team.
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`Q. You weren’t asked to provide that data?
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`A. I was not. That comes from the Play Store.
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`Q. You came to this trial and your legal team came to this trial ready to challenge
`Mr. Weinstein and you didn’t look at the data yourself so you could have, like, a
`counter for us?
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`A. I did not.
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`Q. That information is knowable, correct?
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`A. I don’t know.
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`Trial Tr. 815:10-816:1. The sum and substance of Google’s corporate testimony is that Google
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`does not know whether the data it produced in this case is anything other than what Mr. Weinstein
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`concluded it was.
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`ii.
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`The download data Mr. Weinstein used is the best unit data available
`from Google for the Accused Apps.
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`“An award of damages by a jury is upheld on appellate review unless it is clearly not
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`supported by evidence, grossly excessive, or based only on speculation and guesswork.”
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`Interactive Pictures Corp. v. Infinite Pictures, Inc., 274 F.3d 1371, 1376 (Fed. Cir. 2001) (quoting
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`Oiness v. Walgreen Co., 88 F.3d 1025, 1031 (Fed. Cir. 1996)); see also Ultratec, Inc. v. Sorenson
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`Case 1:13-cv-00919-JLH Document 513 Filed 05/01/23 Page 4 of 6 PageID #: 52379
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`Commc’ns, Inc., 733 F. App’x 535, 540 (Fed. Cir. 2018) (“A jury’s decision with respect to an
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`award of damages ‘must be upheld unless the amount is grossly excessive or monstrous, clearly
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`not supported by the evidence, or based only on speculation or guesswork.’”).
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`There is nothing remotely approaching the kind of speculation or guesswork here that
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`would undermine the jury’s determination of damages. Mr. Weinstein’s unit base is derived from
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`the best evidence available from and provided by Google. It is directly tied to the unit downloads
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`for only the accused apps and only during the period in which the corresponding Android operating
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`system enabled infringement (i.e., August 2017 and later); see also Ex. PX0067 ¶ 10 (Stipulation
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`Concerning Representative Products). There is no record evidence that the download data
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`overstates the number of infringing units by including downloads onto devices that were running
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`earlier versions of Android.
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`iii.
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`Arendi’s and Google’s damages experts both independently concluded
`that the download data represents the appropriate number of
`Accused App units.
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`Google’s claim that Mr. Weinstein improperly failed to apportion the download data is also
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`refuted by Mr. Weinstein’s testimony that he and Google’s expert evaluated the same data sets and
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`arrived at the same conclusions regarding the numbers of Accused Apps. See Trial Tr. 603:22-
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`604:6 (Mr. Weinstein testifying that he “compared the numbers [he] was using in connection with
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`apps with the numbers Google’s expert, Mr. Kidder, was using, and we were using the same
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`numbers.”).
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`B. MR. WEINSTEIN’S ANALYSIS ACCOUNTS FOR DIFFERENCES
`BETWEEN THE COMPARABLE LICENSES AND THE
`HYPOTHETICAL NEGOTIATION.
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`Google’s motion also claims that Mr. Weinstein “failed to properly apportion his royalty
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`rate” for a laundry list of purported reasons. Mot. 6-8. These all fail. Mr. Weinstein expressly
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`acknowledged in his testimony that the other Arendi licenses included more patents than just the
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`Case 1:13-cv-00919-JLH Document 513 Filed 05/01/23 Page 5 of 6 PageID #: 52380
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`’843 Patent, and Mr. Weinstein testified that his analysis was supported by his understanding from
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`Mr. Hedløy that the ’843 Patent “drove the negotiations” that led to the licenses. Id. at 578:2-5.
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`Contrary to Google’s claim that Mr. Weinstein failed to account for Georgia-Pacific factor 7, Mr.
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`Weinstein never so testified, and in fact expressly testified that Google did not have viable non-
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`infringing alternatives to heighten the relevance of this factor. See id. at 632:2-633:4. Google’s
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`other arguments are also wrong. For example, contrary to Google’s claim otherwise, Mr. Weinstein
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`specifically accounted for the Microsoft, MMI, and Apple licenses’ disclaimers of infringement
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`and validity. See, e.g., Trial Tr. 578:17-18 (“Microsoft denied infringement of the patents”).
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`C.
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`THE COURT ALREADY UPHELD MR. WEINSTEIN’S MULTIPLIER.
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`Google’s motion seeks to rehash an argument it lost long ago. The Court has already upheld
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`the propriety of Mr. Weinstein’s multiplier. See D.I. 389 at 12. Google’s attempt to undercut the
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`Court’s earlier analysis fails, as Mr. Weinstein’s trial testimony fully accounted for facts specific to
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`each of the settlement agreements he considered in his royalty rate opinion.
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`D.
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`ARENDI IS ENTITLED TO DAMAGES FOR GOOGLE’S
`INFRINGEMENT.
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`Finally, Google wrongly claims Arendi has somehow waived its right to damages under 35
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`U.S.C. § 284. This claim is largely unexplained, and inexplicable. The statute is clear that “[u]pon
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`finding for the claimant the court shall award the claimant damages adequate to compensate for
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`the infringement, but in no event less than a reasonable royalty for the use made of the invention
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`by the infringer, together with interest and costs as fixed by the court.” 35 U.S.C. § 284. Arendi’s
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`damages claim is well-supported by evidence in the trial record, and that evidence is more than
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`sufficient to enable the jury to determine the reasonable royalty amount. Arendi has by no means
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`somehow waived its statutory entitlement to damages under Section 284.
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`Case 1:13-cv-00919-JLH Document 513 Filed 05/01/23 Page 6 of 6 PageID #: 52381
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`II.
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`CONCLUSION
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`For the foregoing reasons, the Court should deny Google’s motion for judgment of no
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`damages or nominal damages. 
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`
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`SMITH, KATZENSTEIN & JENKINS LLP
`
`/s/ Neal C. Belgam
`Neal C. Belgam (No. 2721)
`Daniel Taylor (No. 6934)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`dtaylor@skjlaw.com
`
`Attorneys for Plaintiff Arendi S.A.R.L.
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`Dated: May 1, 2023
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`
`
`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
`
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`6
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