Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 1 of 12 PageID #: 55564
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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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`GOOGLE LLC,
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`Plaintiff,
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`v.
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`Defendant.
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`GOOGLE’S MOTION FOR JUDGMENT AS A MATTER OF LAW FOR NO
`DAMAGES OR, IN THE ALTERNATIVE, NOMINAL OR LIMITED DAMAGES
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`POTTER ANDERSON & CORROON LLP
`
`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
`
`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
`
`Robert R. Laurenzi
`Chad J. Peterman
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 318-6000
`
`Ginger D. Anders
`MUNGER, TOLLES & OLSON LLP
`601 Massachusetts Avenue NW, Suite 500E
`Washington, D.C. 20001
`Tel: (202) 220-1100
`
`Vincent Y. Ling
`MUNGER, TOLLES & OLSON LLP
`350 S. Grand Avenue, 50th Floor
`Los Angeles, CA 90071
`Tel: (213) 683-9100
`
`Dated: April 27, 2023
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`PUBLIC VERSION
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`Public Version Dated: May 4, 2023
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`

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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 2 of 12 PageID #: 55565
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`Google moves pursuant to Federal Rule of Civil Procedure 50(a) for judgment as a matter
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`of law (“JMOL”) of no damages, or in the alternative nominal damages.
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`I.
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`LEGAL STANDARD
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`Although 35 U.S.C. § 284 provides that upon a finding of infringement, “the court shall
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`award . . . damages adequate to compensate for the infringement” “in an amount no less than a
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`reasonable royalty,” Dow Chem. Co. v. Mee Indus., Inc., 341 F.3d 1370, 1381 (Fed. Cir. 2003),
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`the patentee bears the burden of presenting sufficient evidence thereof, TecSec, Inc. v. Adobe Inc.,
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`978 F.3d 1278, 1291 (Fed. Cir. 2020). Accordingly, “[t]he statute does not require an award of
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`damages if none are proven that adequately tie a dollar amount to the infringing acts.” Id. The
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`statute is also satisfied by awarding nominal damages. See AOS Holding Co. v. Bradford White
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`Corp., 2021 WL 5411103, at *38 (D. Del. Mar. 31, 2021), aff’d, 2022 WL 3053891 (Fed. Cir.
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`2022) ($1 award for direct infringement); Info-Hold, Inc. v. Muzak LLC, 783 F.3d 1365, 1372
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`(Fed. Cir. 2015) (“Where the patentee’s proof is weak, the court may award nominal damages.”).
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`Under apportionment principles, the “ultimate combination of royalty base and royalty rate
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`must reflect the value attributable to the infringing features of the product, and no more.” Finjan,
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`Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1309 (Fed. Cir. 2018) (citation omitted). Although a
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`“reasonable royalty analysis ‘necessarily involves an element of approximation and uncertainty, a
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`trier of fact must have some factual basis for a determination of a reasonable royalty.’” Id. at 1312
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`(vacating denial of damages JMOL); Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1336
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`(Fed. Cir. 2009) (vacating denial of damages JMOL where “no reasonable jury could have found
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`that [patentee] carried its burden”). “The Court must determine not whether there is literally no
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`evidence supporting the non-moving party, but whether there is evidence upon which the jury
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`could properly find for the non-moving party.” Stewart v. Walbridge, Aldinger Co., 882 F. Supp.
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 3 of 12 PageID #: 55566
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`1441, 1443 (D. Del. 1995). When an expert presents “little more than conclusory evidence,” the
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`record lacks substantial evidence. Wechsler v. Macke Int'l Trade, Inc., 486 F.3d 1286, 1294 (Fed.
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`Cir. 2007) (reversing denial of damages JMOL).
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`II.
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`ARGUMENT
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`To obtain his proposed reasonable royalty, Mr. Weinstein uses four Settlement
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`Agreements—the “Microsoft License,” (PX0075); the “Samsung License,” (PX0077); “Microsoft
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`Mobile License” (PX0078); and the “Apple License,” (PX0066)—to calculate an effective royalty
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`rate (10 cents per Google app download and 48 cents per Google device sale); multiplies that rate
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`by a royalty base (number of Google app downloads or Google device sales); and then adjusts the
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`result upward, using a 4X multiplier that supposedly represents litigation risk. Mr. Weinstein’s
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`reasonable royalty opinions are not legally sufficient evidence to support a damages verdict for
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`multiple reasons: (1) his royalty base includes Google apps and devices1 that cannot infringe
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`because they were not updated with the accused Smart Text Selection (“STS”) functionality in
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`Android 8.0 or later operating systems; (2) he failed to properly apportion the settlement
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`agreements used to obtain his royalty rates; and (3) his 4X multiplier is not supported by any
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`legitimate basis. Arendi has waived any right to recover under alternative theories of infringement.
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`Even if there is no waiver, the lack of substantial evidence can only support a finding of nominal
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`damages.
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`1 The “Accused Products” are the instrumentalities accused of infringement, including (1) the
`“Accused Apps,” which are Google Calendar, Chrome, Contacts, Docs, Gmail, Hangouts, Inbox,
`Keep, Messages, Sheets, Slides, and Tasks; and (2) the “Accused Devices,” which are Pixel 2,
`Pixel 2 XL, Pixel 3, Pixel 3 XL, and Pixel C.
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`2
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 4 of 12 PageID #: 55567
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`A.
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`There is no legally sufficient evidence to support Arendi’s damages theory
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`1.
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`Arendi’s royalty base sweeps in apps and devices that cannot infringe
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`The inclusion of non-infringing instrumentalities in infringement damages violates 35
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`U.S.C. § 284. It also constitutes improper application of the hypothetical negotiation framework
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`and apportionment principles because the assertion that the defendant would pay for noninfringing
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`features “runs contrary to what common sense indicates a reasonable licensor would pay for the
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`patents at issue.” Rembrandt Soc. Media, LP v. Facebook, Inc., 22 F. Supp. 3d 585, 595 (E.D. Va.
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`2013).
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`Arendi’s infringement theories are premised on accused STS functionality that first became
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`available in late 2017 via the Android 8.0 update release.2 See 4/26/23 Trial Tr. (Smedley) at
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`547:8–13 (confirming that “[i]f this code didn’t exist in Android 8, then the 12 apps would not
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`infringe”); id. (Smedley) at 556:5–7 (“Android 7 doesn’t have the code for Smart Text Selection
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`built into the framework”). So as Mr. Weinstein conceded, it was “very important that [he]
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`accurately count only those apps that are actually installed on devices with Android 8 or 9,” and
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`that “it would be a mistake to include” Google apps installed on an earlier version of Android.
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`4/26/23 Trial Tr. (Weinstein) at 602:18–603:3.
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`However, Mr. Weinstein failed to accurately limit his royalty base to the Google apps
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`installed on, and Google devices sold with, Android 8 or 9. He relied on data representing all
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`downloads of the Google apps and all sales of Google devices between late 2017 and patent
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`expiration (November 10, 2018). See DTX-0581; 4/26/23 Trial Tr. (Weinstein) at 607:24–609:1,
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`614:23–615:10. He simply “assumed” that they all had Android 8 or 9, even though they did not
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`identify any Android version breakdown. 4/26/23 Trial Tr. (Weinstein) at 605:9–11, 608:16–20
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`2 Google disputes the starting date of alleged infringement.
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`3
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 5 of 12 PageID #: 55568
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`(agreeing that “the source that [he] used to calculate the number of apps that were downloaded did
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`not identify which apps went to Android 6, Android 7, Android 8, or Android 9”). He did “nothing”
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`to determine if his assumption was accurate. See, e.g., 4/26/23 Trial Tr. (Weinstein) at 610:18–
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`610:22 (confirming he “did nothing to try to understand the conversion curve of how users were
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`upgrading their products from Android 7 to Android 8”); id. at 612:17–613:7, 615:4–14, 633:13–
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`634:2. Although he relied on Arendi’s infringement expert Dr. Smedley to form some of his
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`opinions, Dr. Smedley did not do this critical analysis either. See 4/26/23 Trial Tr. (Smedley) at
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`558:7–10 (agreeing he had not “analyzed how many of the accused applications were actually
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`installed on phones with Android 8 or 9”).
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`Indeed, there can be no genuine dispute that Mr. Weinstein’s assumption is incorrect. The
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`roll-out of Android 8 (and STS) did not take place “right away” in late 2017 but, rather, slowly
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`over time potentially years or even never for certain devices. 4/26/23 Trial Tr. (Elbouchikhi) at
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`682:3–685:13; 4/27/23 Trial Tr. (Choc) at 791:18–792:3, 815:5–9 (roll-out could take years or
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`even “never”); id. (Choc) at 814:18–21 (Weinstein’s numbers would be “massively” off); see also
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`4/26/23 Trial Tr. (Toki) at 738:11–740:11. Mr. Weinstein tried to provide three excuses for his
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`failure to apportion his royalty base. 4/26/23 Trial Tr. (Weinstein) at 634:10–635:1. None are
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`availing.
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`First, he claims that STS is the only accused functionality in the case, so it was reasonable
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`for him to assume that the unit numbers were specific to that functionality. That is demonstrably
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`false. When he prepared his expert report, there were other accused functionalities still in the case
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`besides STS—namely Linkify, Smart Linkify, Content Detectors (“CD”), and Contextual Search
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`Quick Actions (“QA”). Since these functionalities spanned all relevant Android versions, not just
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`Android 8 and later, breaking down the royalty base by Android version did not matter at the time,
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`4
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 6 of 12 PageID #: 55569
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`and Mr. Weinstein’s assumption might have been reasonable then. However, on March 31, 2022,
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`the Court granted summary judgment of noninfringement as to Linkify and Smart Linkify, which
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`meant that all non-Chrome Google apps installations with pre-Android 8 versions could no longer
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`infringe. D.I. 393 at 13. Then on April 21, 2023—the eve of trial in a decade-long case—Arendi
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`further dropped CD and QA, which meant all Chrome app installations with pre-Android 8
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`versions of Android also could no longer infringe.3 See D.I. 479. But Arendi and its experts never
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`tried to identify or request Google app installation or Google device sales data specific to Android
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`versions 8 and 9. Mr. Weinstein cannot claim ignorance.
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`Second, he claims that he simply relied on numbers that Google provided. Again, that is
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`no excuse. He admitted that he understood the data to be for all units regardless of Android version
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`yet did nothing to apportion for downloads based on pre-Android 8 versions. See 4/26/23 Trial Tr.
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`(Weinstein) at 607:24–610:22, 615:4–14. It is Arendi’s burden to prove damages, not Google’s.
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`Yet he did not know whether Arendi even asked Google for downloads based on Android operating
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`system and recognized that Arendi could have done so. Id. at 665:12–667:5.
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`Third, he claims that Google expert Mr. Kidder used the same numbers. 4/26/23 Trial Tr.
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`(Weinstein) at 604:1–605:1, 609:15–19, 635:4–636:21. But that does not support Weinstein’s use,
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`as Mr. Kidder was merely rebutting the theories that Mr. Weinstein put forward, and in the course
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`of that rebuttal, used Mr. Weinstein’s numbers.
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`Mr. Weinstein’s over-counting results in a reasonable royalty that he concedes is “too
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`high.” 4/26/23 Trial Tr. (Weinstein) at 611:8–12. But, because he failed to analyze the issue, there
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`is no evidence about how “overinflated” his calculations are. Id. at 611:18–612:10, 615:11–14.
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`Arendi’s damages theory falls well short of satisfying apportionment principles, and it fails as a
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`3 The Linkify, Smart Linkify, CD, and QA accused functionalities all dropped out of the case
`after the deadline for Daubert motions.
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`5
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 7 of 12 PageID #: 55570
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`matter of law. The flaw in his royalty base is not “merely a dispute of a fact”; it means that “the
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`entirety of [Mr. Weinstein’s] damages analysis is unreliable,” Rembrandt, 22 F. Supp. 3d at 595–
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`96, and “legally insufficient,” Niazi Licensing Corp. v. St. Jude Med. S.C., Inc., 30 F.4th 1339,
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`1357 (Fed. Cir. 2022) (failure to apportion between infringing and noninfringing uses renders
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`opinion “legally insufficient”).
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`2.
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`Mr. Weinstein fails to properly account for differences between the
`purportedly comparable settlement agreements and the hypothetical
`negotiation, resulting in an unapportioned royalty rate
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` To calculate his effective royalty rates per app and device, Mr. Weinstein used the entire
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`licensing payments contemplated in the four Settlement Agreements, divided them by the number
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`of covered units in each agreement, and then averaged the resulting royalty rates. See 4/26/23 Trial
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`Tr. (Weinstein) at 588:9–595:18; id. at 622:19–21 (confirming he used the full settlement amount
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`for each agreement to find his royalty rate). To rely on those licenses as comparable and ensure
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`that the royalty rate is “sufficiently tied to the facts of the case,” Apple Inc. v. Wi-LAN Inc., 25
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`F.4th 960, 971 (Fed. Cir. 2022), Weinstein was required to account for differences from the
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`hypothetical negotiation. In particular, he had to ensure that his effective royalty rate is tied to the
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`value of the patented features by apportioning, or by demonstrating that the licenses contained
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`“built-in” apportionment or were “sufficiently comparable such that further apportionment is not
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`required.” NNCrystal US Corp. v. Nanosys, Inc., 2023 WL 2891453, at *2 (D. Del. Apr. 11, 2023);
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`accord Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1226 (Fed. Cir. 2014). He failed to
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`properly apportion his royalty rate for several reasons:
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`(i) Portfolio licenses: The Settlement Agreements are all portfolio licenses covering
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`multiple patents under materially different circumstances than the hypothetical negotiation, yet
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`Mr. Weinstein admitted that he did not try to adjust for the different circumstances, much less
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`apportion for the value of the ’843 Patent. 4/26/23 Trial Tr. (Weinstein) at 622:19–623:5
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`6
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 8 of 12 PageID #: 55571
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`(conceding he “didn’t try to adjust the settlement amount downward at all to account for the fact
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`that those agreements related to a whole patent portfolio, and the agreement with Google would
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`only be a single patent”). Nor did he demonstrate that the ’843 Patent somehow accounted for the
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`entire license amounts in those agreements despite their coverage of entire portfolios. Mr.
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`Weinstein merely relied on the beliefs of Mr. Hedloy, who would directly benefit from a larger
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`verdict in this case, about the supposed value of the ’843 Patent in the licenses. Id. at 577:25–
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`578:5. That is entirely conclusory and legally insufficient basis, especially as Mr. Hedloy testified
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`that he did not know which of the licensed patents was most valuable as to Samsung and Microsoft.
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`4/24/23 Trial Tr. (Hedloy) at 234:5–15, 243:13–20. Indeed, the Federal Circuit has vacated
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`damages awards based on failure to exclude the value of unasserted patents in portfolio licenses
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`where the expert has tried but failed adequately to account for those differences; here, Mr.
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`Weinstein did not even attempt to apportion for the value of the ’843 Patent. See Apple Inc., 25
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`F.4th at 972–74; MLC Intell. Prop., LLC v. Micron Tech., Inc., 10 F.4th 1358, 1375 (Fed. Cir.
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`2021) (discussing the need to apportion licenses); NNCrystal, 2023 WL 2891453, at *4 (damages
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`theory “improper” for failure to apportion, where expert failed to analyze license’s “broader set of
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`rights than what would be present in a hypothetical negotiation between the parties”).
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`(ii) License duration: Mr. Weinstein admitted on cross-examination that he failed to
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`properly account for Georgia-Pacific factor 7, which is license duration. 4/26/23 Trial Tr.
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`(Weinstein) at 632:2–23. He admitted that the parties would have a different expectation for a one-
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`year license resulting from a hypothetical negotiation than the longer license provided in the
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`Settlement Agreements, yet he did not make any adjustments to his reasonable royalty for that
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`consideration. Therefore, he also failed to account for this factor.
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`7
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 9 of 12 PageID #: 55572
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`(iii) Specific considerations for each Settlement Agreement: Mr. Weinstein’s inclusion of
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`the agreements without accounting in any other way for individualized differences further renders
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`his opinions insufficient to support any damages award and not properly apportioned. For example,
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`he gave all of the agreements equal weight in calculating an average effective royalty,
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`example, he failed to account for the fact that the
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` As another
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`PX0066 at 1; PX0075 at 1; PX0078 at 2. And in the Microsoft Agreement, he declined to break
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`down Microsoft Office into 3 units (Word, Excel, Powerpoint). That methodology is inconsistent
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`with how he counted Google apps (e.g., Docs and Sheets separately), and he admitted it inflated
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`his royalty rate. See 4/26/23 Trial Tr. (Weinstein) at 629:17–20. He did not provide any explanation
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`for his failure to account for individualized differences with each Settlement Agreement compared
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`to the hypothetical negotiation.
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`3.
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`Mr. Weinstein’s 4X multiplier lack any legitimate basis
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`Mr. Weinstein then further increased his damages calculation by applying a 4X multiplier,
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`based on Mr. Hedloy’s supposed assignment of litigation risk to the Settlement Agreements. This
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`multiplier lacked any valid basis. Mr. Weinstein’s 4X multiplier survived a Daubert challenge
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`because the Court found that he “ha[d] sufficiently accounted for the facts specific to each of the
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`settlement agreements he considered in his royalty rate opinions and adjusted the rates
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`accordingly.” D.I. 389 (3/31/22 Mem. Op.) at 12. However, at trial Mr. Weinstein failed to offer
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`“facts specific” to each of the agreements, but rather applied the same 4X multiplier in conclusory
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`fashion, based on conversations with Mr. Hedloy, an interested party. Mr. Hedloy allegedly told
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`Mr. Weinstein that Arendi had a 50/50 chance of prevailing at three different points in each of the
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`8
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 10 of 12 PageID #: 55573
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`settled litigations. 4/26/23 Trial Tr. (Weinstein) at 592:22–595:5. But Mr. Hedloy is neither an
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`attorney nor an economist and has no basis to quantify patent litigation risk. Indeed, Mr. Hedloy
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`“never testified that the undiscounted value of the agreements was actually four times more.” Id.
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`at 631:23–632:1. Yet Mr. Weinstein assumed, without more, that Mr. Hedloy’s testimony justifies
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`a 4X multiplier, which leaves an evidentiary gap for the litigation risk calculation, the “province
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`of expert analysis.” AVM Techs., LLC v. Intel Corp., 927 F. Supp. 2d 139, 146 (D. Del. 2013). Mr.
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`Weinstein cannot “merely ‘parrot[]’ the opinion” of Mr. Hedloy converted into a multiplier “as
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`though it were fact.” Amgen Inc. v. Sanofi, 2019 WL 11071409, at *3 (D. Del. Feb. 14, 2019).
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`Mr. Weinstein’s damages analysis therefore fails to provide legally sufficient evidence of
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`the incremental value of the ’843 Patent or substantial evidence for a reasonable jury to calculate
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`damages. The Court should hold that the 4X multiplier is improper as a matter of law.
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`B.
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`Arendi has waived any valid theory of recovery by single-mindedly pursuing
`its unsupportable damages theory
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`No reasonable jury applying the law could find that Arendi’s damages theory supports a
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`properly apportioned reasonable royalty. Therefore, Arendi has not presented legally sufficient
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`evidence to establish damages as a matter of law.
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`Arendi waited until the eve of trial to drop its allegations of infringement against other
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`products, at which point Google met-and-conferred with Arendi and filed a motion with the Court
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`raising the most glaring of the legal deficiencies with Mr. Weinstein’s damages framework based
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`on the dramatically altered accused product lineup. See D.I. 479 (Google letter motion).
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`Undeterred, Arendi chose to ignore these deficiencies and forge ahead to trial. In view of its
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`deliberate decision to single-mindedly rely on an improper reasonable royalty theory, Arendi has
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`abandoned and waived any alternative theories. See Promega Corp. v. Life Techs. Corp., 875 F.3d
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`9
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 11 of 12 PageID #: 55574
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`651, 666 (Fed. Cir. 2017) (waiver of damages when patentee “deliberately abandons valid theories
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`of recovery in a singular pursuit of an ultimately invalid damages theory”).
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`In the alternative, Arendi’s evidence at most supports awarding nominal damages for any
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`liability by Google—an outcome that would satisfy 35 U.S.C. § 284 and be commensurate with
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`Arendi’s failure to carry its burden of proving a reasonable royalty amount. See AOS Holding Co.,
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`2021 WL 5411103, at *38; Info-Hold, Inc., 783 F.3d at 1371–72 (“Where the patentee’s proof is
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`weak, the court may award nominal damages.”).
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`III. CONCLUSION
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`For these reasons, the Court should grant judgment of no damages or, in the alternative,
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`nominal damages as a matter of law or no 4X multiplier for Arendi’s calculation.
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`10
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`Case 1:13-cv-00919-JLH Document 541 Filed 05/04/23 Page 12 of 12 PageID #: 55575
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`POTTER ANDERSON & CORROON LLP
`
`By: /s/ David E. Moore
`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
`
`
`Attorneys for Defendant Google LLC
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`OF COUNSEL:
`
`Robert W. Unikel
`John Cotiguala
`Matt Lind
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Tel: (312) 449-6000
`
`Robert R. Laurenzi
`Chad J. Peterman
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 318-6000
`
`Ginger D. Anders
`MUNGER, TOLLES & OLSON LLP
`601 Massachusetts Avenue NW, Suite 500E
`Washington, D.C. 20001
`Tel: (202) 220-1100
`
`Vincent Y. Ling
`MUNGER, TOLLES & OLSON LLP
`350 S. Grand Avenue, 50th Floor
`Los Angeles, CA 90071
`Tel: (213) 683-9100
`
`Dated: April 27, 2023
`10780790 / 12599.00040
`
`11
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`Public Version Dated: May 4, 2023
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`