Case 1:13-cv-00919-JLH Document 517 Filed 05/01/23 Page 1 of 5 PageID #: 52394
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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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`Original Version Filed: April 23, 2023
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`Public Version Filed: May 1, 2023
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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.
`
`LETTER TO THE HONORABLE JENNIFER L. HALL FROM NEAL BELGAM
`REGARDING ARENDI’S RESPONSE TO GOOGLE’S MAY 23, 2023
` LETTER REGARDING DAMAGES AND WILLFULNESS
`
`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
`
`Attorneys for Plaintiff Arendi S.A.R.L.
`
`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: April 23, 2023
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`

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`Case 1:13-cv-00919-JLH Document 517 Filed 05/01/23 Page 2 of 5 PageID #: 52395
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`Dear Judge Hall:
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`On Friday, when Google still had eight obviousness combinations, Arendi informed
`Google it planned to narrow the number of applications accused of infringement that it would
`present to the jury; specifically, it intended to focus on applications’ use of Google’s Smart Text
`Selector (STS). Arendi indicated that it would not pursue certain software functionalities used by
`the Chrome application (i.e., Content Detectors (CD) and Contextual Search Quick Actions
`(CSQA) functionalities); would not pursue the News application; and as a result, would not pursue
`certain devices. That narrowing of the set of accused applications and products lowered the number
`of units at issue. It did not change the rates or the methodology used for the damages model.
`
`
`That same night, Arendi sent highlighted copies of Exhibits from Mr. Weinstein’s report
`showing which accused applications and units were being removed, along with the damages that
`would come out as a result. Mr. Weinstein had previously disclosed damages on an application-
`by-application basis so this is a straightforward exercise. This reduced the damages claimed by
`Arendi to $45.5 million. Ex. A.
`
`
`Google’s claim of prejudice is entirely disingenuous and unfounded. Google’s own
`damages expert already opined on this very scenario and calculated rebuttal damages for the
`narrowed case that Arendi now intends to present to the jury. Google had already done the math
`in what it called an “alternative scenario”:
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`
`
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` “I have also been asked to consider an alternative scenario in which only STS is
`found to be properly accused of infringement, such that the hypothetical
`negotiation would have taken place around December 5, 2017.”1
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` “I have also been asked to consider a scenario in which the date of first alleged
`infringement was no earlier than December 5, 2017, when STS was enabled
`in Android 8. . . . It is my opinion that a hypothetical negotiation in or
`around December 2017 for a non-exclusive license to the ’843 Patent
`encompassing the accused Google devices and the use of the accused Google
`apps on all devices (Google and non-Google) would have resulted in an
`agreement under which Google would make a lump sum payment to
`Arendi of $500,000.”2
`
`Google’s motion follows the same path as others; it has turned every pretrial discussion
`into a purported basis to file new motions and make arguments that it could have raised earlier but
`never did. Google is now using Arendi’s effort to streamline the case to again try to exclude
`Arendi’s damages expert and strike its willfulness claim. Both arguments are baseless, but more
`importantly, they rely on theories that existed before Arendi reduced the scope of its case.
`
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`Finally, Arendi is surprised Google seeks these sanctions based on Arendi’s effort to reduce
`the scope of the case, especially given Google’s simultaneous narrowing of its invalidity
`combinations. Google reduced its obviousness combinations from eight to six on Saturday. A day
`
`1 Ex. B at ¶ 30 (Kidder Supplemental Report 8/26/2022).
`2 Id. ¶ 175.
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`1
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`Case 1:13-cv-00919-JLH Document 517 Filed 05/01/23 Page 3 of 5 PageID #: 52396
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`later, on Sunday, Google advised Arendi by email it would be dropping another of its references,
`further reducing its combinations to four – reducing in half its total combinations over the course
`of two days. Efforts to focus the case before the jury in a time-limited trial are not the subject of
`motions or demands for sanctions – especially when Google expressly planned for them.
`
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`I.
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`There is No Basis To Exclude Mr. Weinstein
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`
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`Google’s main argument for objecting to Arendi’s reduction in scope is that the
`“hypothetical negotiation date” will shift by “more than five years to late 2017.” But Google fails
`to disclose that Google’s own expert already adopted a late 2017 hypothetical negotiation date in
`his supplemental report for his STS-only scenario, and that Arendi’s expert Mr. Weinstein already
`agreed that the change to 2017 does not make any difference.
`
`
`In his supplemental report, Google’s damages expert noted Google’s view that Arendi
`could not prove infringement by Content Detectors and “CSQA” in light of the summary judgment
`order. Ex. B ¶ 20. He explained this would shift the hypothetical negotiation date to late 2017. Id.
`¶ 23. Arendi has now reduced the scope of its case by dropping “Content Detectors” and “CSQA”
`and related devices from its infringement claim – exactly what Google advocated for and
`anticipated.
`
`
`Google’s expert testified that he adopted the late 2017 hypothetical negotiation date as one
`of two possible negotiation dates:
`
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`And that’s based on the point I make in paragraph 98, which is that the term of the
`hypothetical license would be from the date of the hypothetical negotiation on
`December 5, 2017, until November 10, 2018, or .93 years.3
`
`See also Ex. B at ¶ 175. Google’s expert testified that he had already done the math using the
`alternative date based on an assumption that “you now have a negotiation over about an 11-month
`license for the use of STS alone across the apps and devices.” Ex. C at 134:21-135:11 (emphasis
`added) (Q. You offer an alternative royalty of $500,000 if the hypothetical negotiation occurred
`around December 2017; is that right? A. That is correct.”).
`
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`Arendi’s damages expert, Mr. Weinstein, was asked about this in his deposition, and he
`agreed that a late 2017 hypothetical negotiation date would not change his analysis:
`
`
`Q So when do you believe that the hypothetical negotiation would have
`occurred … now in light of the Court's rulings?
`
`A You -- you noted that I don't address that in my reports, and as far as -- as far as
`I'm concerned, the hypothetical negotiation date is the same for Google given --
`given Chrome and infringement of Chrome. Or for Motorola, in my original report,
`the hypothetical negotiation was around March of 2011. Given the Court's -- the
`Court's ruling on Linkify and Smart Linkify, it -- it could be -- it could be later.
`But even if it were later, such as in 2017, I -- I don't believe that -- that change
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`3 Ex. C at 28:14-18 (Dep. Tr. of D. Kidder dated Oct. 25, 2022).
`2
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`Case 1:13-cv-00919-JLH Document 517 Filed 05/01/23 Page 4 of 5 PageID #: 52397
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`of the date would change the results of my analysis insofar as the damages that
`I've calculated are concerned.4
`
`Google’s suggestion that a 2017 hypothetical negotiation date changes the landscape of the
`case is flatly wrong. Indeed, rather than creating greater differences, Arendi’s damages expert Mr.
`Weinstein and Google’s expert Mr. Kidder are now more closely aligned on a 2017 hypothetical
`negotiation date. To the extent there are variations on the precise timing in 2017, this is an issue
`Google can cross Mr. Weinstein on. But both experts already had disclosed the possibility of
`relying on a 2017 date in the very scenario present here. No surprise.
`
`
`Google also argues that Mr. Weinstein’s report is deficient because “it is now critical to
`distinguish between products using pre-Android 8 operating systems (no longer allegedly
`infringing by any app) vs. post-Android operating systems (allegedly infringing).” Letter at 2-3.
`But Google fails to tell the Court that for 11 of the 12 apps at issue in this case, Arendi had only
`been accusing post-Android 8 operating systems. To the extent Google contends Mr. Weinstein
`fails to distinguish between pre- and post-Android 8 apps, this is an argument Google could have
`raised long ago. It chose not to do so. Perhaps it was never raised because it lacks merit: Mr.
`Weinstein is simply relying on the data Google produced, and Judge Stark ordered Google to
`submit to a supplemental deposition to confirm these applications were the accused products. Ex.
`E at 10, 19 (Oral Order dated Dec. 9, 2019). Again, at best, this is an argument for cross
`examination. But Arendi’s narrowing of the case did not change any argument Google purports to
`have.
`
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`II.
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`Arendi Will Not Argue to the Jury that it is Entitled to Prior Weinstein Numbers
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`
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`Google next asks this Court to prevent Arendi from (1) telling the jury it is entitled to an
`award larger than $45.5M based on the higher numbers in Mr. Weinstein’s supplemental report,
`or (2) from asserting that Google’s damages expert used an incorrect hypothetical negotiation date.
`Google never raised these requests in a meet-and-confer, even though the parties held multiple
`calls about other subjects on Friday night and Saturday night. In any event, the answers are simple:
`1) Arendi does not plan to argue or offer affirmative testimony that it could have asked for a larger
`damages number unless Google opens the doors on that issue; 2) Arendi will not attack Google’s
`damages expert for changing his hypothetical date to the alternative disclosed already in his report.
`The experts do have a difference of months between their 2017 hypothetical negotiation dates
`which may be the subject of examination.
`
`
`III. Google’s New Willfulness Argument is Meritless
`
`
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`Finally, Google argues that it should be granted summary judgment on willfulness because
`Arendi’s initial infringement contentions did not chart how STS infringed the patent. But again,
`this baseless argument is one that Google could have raised at summary judgment if it really
`thought there was no triable issue of fact. Google did not move on Arendi’s willfulness claim
`because it knew it had no basis to do so. Nothing about Arendi’s narrowing of the case changed
`Google’s potential grounds. It has always been the case that STS was not introduced until 2017,
`and that Arendi did not chart how STS infringed until 2019. But that does not apply just to STS.
`
`4 Ex. D at 414:8-21 (Dep. Tr. of R. Weinstein dated Oct. 18, 2022).
`3
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`Case 1:13-cv-00919-JLH Document 517 Filed 05/01/23 Page 5 of 5 PageID #: 52398
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`The same is true of the CD and CSQA functionalities which Arendi just removed from the case.
`In other words, if Google wanted to argue that willfulness was not possible because charts for
`certain new functionalities were only served after the patent expired, it had every opportunity to
`do so long before today.
`
`
`The reason Google did not make that argument on summary judgment is that it is
`inconsistent with the factual inquiry for willfulness and with the procedural history of the case.
`This case was stayed during Google’s unsuccessful IPR; an amended complaint and new charts
`were not served until the case was unstayed. Arendi cannot be penalized for a stay in the case.
`More importantly, these arguments cannot defeat willfulness as a matter of law. These are pure
`factual questions for the jury.
`
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`The factors that Google’s own jury instructions cite include asking whether Google
`reasonably believed it did not infringe and whether it made a good-faith effort to avoid infringing
`the ’843 Patent during the patent term. These are pure fact questions.
`
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`Google admits that it was on notice of Arendi’s patent and how other Google products
`allegedly infringed the patent in 2013, but suggests the prior charts did not put it on notice of how
`its new products might infringe given that the old charts related to apps running on “desktop”
`browsers and the new charts relate to “mobile” apps. Google does not explain how that distinction
`makes a difference, and it is a fact issue for the jury to decide whether Google deliberately and
`intentionally infringed the patent based on its applications containing the STS functionality.
`
`
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`Respectfully,
`
`/s/ Neal C. Belgam
`
`Neal C. Belgam (No. 2721)
`
`cc:
`
`
`Clerk of Court (via CM/ECF)
`All Counsel of Record (via CM/ECF)
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`4
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