Case 1:13-cv-00919-JLH Document 516 Filed 05/01/23 Page 1 of 5 PageID #: 52389
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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
`ON THE ISSUE OF DIRECT INFRINGEMENT
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`Plaintiff Arendi respectfully requests that the Court deny Defendant Google’s motions for
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`judgment as a matter of law on the issue of direct infringement, filed at D.I. 494.1
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`A.
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`Each input device is “set up” by the first computer program, and searching is
`caused “in consequence of receipt by the first computer program of the user
`command from the input device”
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`The Court construed “computer program” to mean “a self-contained set of instructions, as
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`opposed to a routine or library, intended to be executed on a computer so as to perform some task.”
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`D.I. 144. Dr. Smedley offered extensive testimony explaining how each computer program sets up
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`the input device and receives the user command from the input device—as required by the claims.
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`E.g., Trial Tr. (Smedley) at 395:3-403:22, 406:6-17.
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`Google’s motion hinges on limiting the Court’s construction of “computer program” to
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`app-specific source code that is stored in an isolated file, the “apk.” But as Google’s own expert
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`1 Google also moved for judgment on Arendi’s indirect infringement claims. To focus Arendi’s
`case on direct infringement, Arendi has withdrawn its indirect infringement claim, rendering
`Google’s motion moot. D.I. 505 (Joint Proposed Verdict Form) and D.I. 506 (Joint Proposed Jury
`Instructions).
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`Case 1:13-cv-00919-JLH Document 516 Filed 05/01/23 Page 2 of 5 PageID #: 52390
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`testified, that is not what the construction requires. Trial Tr. (Rinard) at 955:25-956:8, 957:12-
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`957:19 (“It’s definitely not limited to source code, and it doesn’t say anything about storage either
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`in the instruction [sic].” Id. at 957:17-19).
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`Multiple witnesses and exhibits admitted into evidence confirm that each Google App
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`comprises both instructions in its app-specific code and the framework code that those instructions
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`expressly direct be included in the computer program. E.g., Trial Tr. (Smedley) 296:22-297:3
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`(“When programmers include things from” the Android framework “it’s part of the program.”);
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`id. at 295:9-296:4 (explaining how app-specific code causes framework code to be included in a
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`Google App); id. at 370:23-371:22 (same); see also Trial Tr. (Rinard) at 958:9-959:7 (testifying
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`that when apps “use” framework code, they “communicate” with and “configure” that code
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`because all apps use it “slightly differently”); id. at 963:23-964:4 (testifying Google Apps can
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`implement functionality in the framework); id. at 968:9-14 (“Q. Well, you said Gmail has to
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`identify which portions of the framework are going to get used? A. Sure. Look, the Java the Java—
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`look, whatever happen there, that app has to specify which parts of the framework it wants to use
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`and execute instructions that cause those parts of the framework to execute.”). When executed, the
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`Google App code and framework code run together in a single process. Trial Tr. (Rinard) at
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`971:19-972:2; Trial Tr. (Elbouchikhi) 703:25-705:20 (testifying “[t]he process of an app is
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`effectively how it runs on the system,” that the apk-specific and framework “processes are running
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`together,” and that during this time “they are joined together”); Trial Tr. (Toki) 757:12-23
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`(testifying that TextView, defined in the Android framework, runs “as part of the app’s process,”
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`which would “cause Smart Text Selection to work in the app”).
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`Google’s efforts to assimilate the “self-contained” set of instructions to app-specific code
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`saved in a particular apk file leads to results inconsistent with the remainder of the Court’s
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`Case 1:13-cv-00919-JLH Document 516 Filed 05/01/23 Page 3 of 5 PageID #: 52391
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`construction, which requires that the instructions be “intended to be executed on a computer so as
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`to perform some task.” Were the Google Apps to exclude the framework code, they could not do
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`anything at all. E.g., Trial Tr. (Rinard) at 960:9-16, 961:4-24, 965:9-966:5. Indeed, Dr. Rinard’s
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`own testimony requires that framework code utilized by the first computer program comprise part
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`of the first computer program: He acknowledges that the first computer program is used for
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`displaying the document—notwithstanding its use of framework code to do so. Compare Trial Tr.
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`(Rinard) at 974:17-20 (“Q. Okay. You also don’t dispute that the accused apps and devices meet
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`this [limitation]—displaying the document electronically using the first computer program, right?
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`A. That’s correct.”) with Trial Tr. (Rinard) at 961:4-24 (“Q. Yeah. We wouldn’t be able to see the
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`e-mail without functionality provided by the framework, right? A. That is correct.”) and (“Q.
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`Right. But the action like displaying the text, sending the e-mail, all that action, that’s provided by
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`the Java API framework, correct? A. Yeah. And – yeah, shared between all the apps and provided
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`by the API framework . . . .”) and Trial Tr. (Rinard) at 975:16-977:16.
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`B.
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`Google makes, uses, sells, offers for sale, or imports into the United States the
`required CRMs.
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`Dr. Smedley identified two encoded computer readable mediums (“CRMs”) that satisfy
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`the asserted claims: the copy of the app-specific instructions encoded on Google’s Play Store
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`servers and the copy downloaded to the memory of the user’s device. Trial Tr. (Smedley) at 454:4-
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`11. Both are sufficient to establish infringement.
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`Google argues that copies of the CRMs on its servers cannot infringe because of a lack of
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`evidence that Android framework code resides on the server. But that argument misstates the
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`requirement of the claims. Claim 23 claims a “non-transitory computer readable medium which,
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`when loaded on a computer, establish processes” laid out in the limitations. PX001 (’843 Patent),
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`at 12:40-44. The app-specific code (what Google refers to as the “apk”) contains all of the
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`3
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`Case 1:13-cv-00919-JLH Document 516 Filed 05/01/23 Page 4 of 5 PageID #: 52392
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`instructions necessary to establish each limitation when loaded onto a compatible computer—i.e.,
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`an Android 8 or 9 device—including by directing the use of framework code. E.g., Trial Tr.
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`(Smedley) 455:25-456:7.
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`Google also errs in arguing that Google cannot be liable for the instructions downloaded
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`onto the CRM on user’s devices. That encoded CRM is sold and/or made by Google. The encoding
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`of the instructions on the user’s CRM is the direct, necessary and intended result of Google’s Play
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`Store transmitting the instructions from Google’s servers to the device. No evidence in the record
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`identifies any action required by the user to subsequently “configure” or otherwise alter the CRM
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`to make it infringing. See, e.g., Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1204-05
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`(Fed. Cir. 2010); see also VirnetX Inc. v. Apple Inc., 792 F. App’x 796, 808 (Fed. Cir. 2019);
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`Fantasy Sports Props., Inc. v. Sportsline.com, Inc., 287 F.3d 1108, 1118-19 (Fed. Cir. 2002); M2M
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`Sols. LLC v. Sierra Wireless Am., Inc., No. CV 14-1102-RGA, 2020 WL 7767639, at *12-13 (D.
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`Del. Dec. 4, 2020); M2M Sols. LLC v. Motorola Sols., Inc., No. CV 12-33-RGA, 2016 WL 70814,
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`at *9 (D. Del. Jan. 6, 2016).
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`C.
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`Evidence in the Record, including Google’s own stipulation, supports the
`availability of STS starting with the release of Android 8 on August 21, 2017
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`Google is bound by its own representative products stipulation, PX0067. That stipulation
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`includes the includes the following provision:
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`The produced Pixel device loaded with Android version 8 (Oreo), having the
`Accused Applications that were available in connection with that Android version
`(whether or not those applications were preinstalled), may be treated as
`representative of all Google-branded devices loaded with versions of Android
`version 8 (Oreo). The Accused Applications loaded on that device may likewise be
`treated as representative of those Accused Applications when installed on devices
`with versions of Android version 8.
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`PX0067 at 5. Dr. Smedley testified that the STS worked in Google Apps on the representative
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`Pixel device, which was running Android 8.0.0. E.g. Trial Tr. (Smedley) at 457:24-458:4. Dr.
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`Case 1:13-cv-00919-JLH Document 516 Filed 05/01/23 Page 5 of 5 PageID #: 52393
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`Smedley’s testimony is corroborated by exhibits introduced into evidence. E.g., PX0673 (screen
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`recording evidencing operation of STS on representative Pixel device); PX0458 (representative
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`Pixel device). Dr. Smedley offered extensive testimony that detailed additional bases for his
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`opinion that STS became available on August 21, 2017, with the release of Android 8. Trial Tr.
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`(Smedley) at 456:8-462:5, 465:18-467:11.
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`For these reasons, Google’s motion should be denied.
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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
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`Kalpana Srinivasan (pro hac vice)
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`ksrinivasan@susmangodfrey.com
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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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`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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