`
`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 BASED ON SAMSUNG AGREEMENT
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`Plaintiff Arendi respectfully requests that the Court deny Defendant Google’s motion for
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`judgment as a matter of law based on the Samsung agreement, filed at D.I. 498.
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`The Samsung Agreement does not foreclose damages for Google Apps downloaded onto
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`Samsung devices. First, that Agreement unambiguously excludes those post-purchase user-
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`installed apps from the scope of Samsung’s license and release. Arendi incorporates by reference
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`its briefing on this same issue in D.I. 426 at 3-5.1 Second, should the Court find the Agreement to
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`be ambiguous, evidence in the record would permit a reasonable jury to find in favor of Arendi
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`based on unrebutted testimony. E.g., Trial Tr. (Hedløy) at 238:3-239:12, 247:12-250:7 (testifying
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`to lack of intent to license Samsung); Trial Tr. (Weinstein) at 662:8-663:1 (testifying that, based
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`on his expertise, he would not “expect a licensee to silently release claims against a different
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`company in separate litigation without mentioning that separate company in the agreement); see
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`also, e.g., Trial Tr. (Choc) at 816:14-818:2 (testifying, as Google’s corporate representative, to
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`1 Google’s Apps, moreover, infringe the asserted computer readable medium claims even before
`they are downloaded onto a Samsung device. See Arendi’s Opposition to Google’s Motion for
`Judgment as a Matter of Law on the Issue of Direct Infringement, Section B.
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`
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`Case 1:13-cv-00919-JLH Document 515 Filed 05/01/23 Page 2 of 3 PageID #: 52387
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`lack of knowledge of Google’s participation in, payment for, or communications with Samsung
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`regarding the Samsung Agreement). Third, Google’s defense is waived. Google’s raises an express
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`license defense but never pleaded one in its answer. See generally D.I. 99.
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`Google has also waived any defense based on the doctrines of “exhaustion” or “implied
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`license.” Google makes no reference to those doctrines in its motion, and Google never amended
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`its answer to include the Samsung license as a basis for such defenses. See D.I. 99 at ¶ 69. Those
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`doctrines, moreover, do not apply for the same reasons that Google’s express license defense fails:
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`the Samsung license extends only to the devices sold by Samsung. The accused Google Apps are
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`installed by users after the point-of-sale. E.g., Trial Tr. (Smedley) at 308:16-24. And Google has
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`made no showing, for example, that the licensed devices lack substantial alternative uses to hosting
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`post-sale downloads of the Google Apps.
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`
`Dated: May 1, 2023
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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
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`
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`SMITH, KATZENSTEIN & JENKINS LLP
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`/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
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`Attorneys for Plaintiff Arendi S.A.R.L.
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`Case 1:13-cv-00919-JLH Document 515 Filed 05/01/23 Page 3 of 3 PageID #: 52388
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`Kemper Diehl (pro hac vice)
`401 Union Street, Suite 3000
`Seattle, WA 98101-3000
`kdiehl@susmangodfrey.com
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