Case 1:13-cv-00919-JLH Document 595 Filed 07/28/23 Page 1 of 12 PageID #: 59772
`Case 1:13-cv-00919-JLH Document 595 Filed 07/28/23 Page 1 of 12 PagelD #: 59772
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`CA. No. 13-919-JLH
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`Original Version Filed: July 21, 2023
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`Public Version Filed: July 28, 2023
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`ARENDIS.A.R.L.,
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`Plaintiff,
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`V.
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`GOOGLELLC,
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`Defendant.
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`ARENDIS.A.R.L.’S REPLY IN SUPPORT OF ITS
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`RENEWED MOTIONS FOR JUDGMENTAS A MATTER OF LAW
`AND MOTION FOR A NEW TRIAL
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`Case 1:13-cv-00919-JLH Document 595 Filed 07/28/23 Page 2 of 12 PageID #: 59773
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`Google’s brief confirms its failure to prove invalidity. First, Google does not (and cannot)
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`identify element-by-element expert testimony. Instead, it pretends none is required. Second,
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`Google fails to explain how exhibits and fact witnesses could fill the gaps in expert testimony. Its
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`argument ignores claim limitations. Its “see, e.g.” approach cites evidence with no apparent
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`connection to its theories and illustrates the need for expert analysis. Finally, Google relies on
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`estopped prior art. Arendi is thus entitled to judgment as a matter of law or a new trial.
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`I.
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`GOOGLE LACKS EXPERT TESTIMONY TO SUPPORT INVALIDITY
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`Rather than identify expert testimony to establish invalidity, Google provides two out-of-
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`context soundbites to suggest such testimony was not needed. D.I. 576 at 1. Both cases Google
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`quotes undercut its position and confirm the general requirement of expert testimony to support a
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`finding of invalidity. E.g., Koito Mfg. Co. v. Turn-Key-Tech, LLC, 381 F.3d 1142, 1152 (Fed. Cir.
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`2004). Exceptions to that rule are limited to inapposite cases concerning simple technologies. E.g.,
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`Id. at n.4; Alexsam, Inc. v. IDT Corp., 715 F.3d 1336, 1347-48 (Fed. Cir. 2013).
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`First, Google claims “[t]here is no invariable requirement that a prior art reference be
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`accompanied by expert testimony.” D.I. 576 at 1 (quoting In re Brimonidine Patent Litig., 643
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`F.3d 1366, 1376 (Fed. Cir. 2011)). Google ignores the case’s next sentence: “But it is well within
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`a trial judge’s discretion to require expert testimony supporting technical references that are relied
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`on to establish obviousness.” 643 F.3d at 1376. And in In re Brimonidine, the district court did just
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`that, granting JMOL of non-obviousness partly due to a lack of expert testimony. Id. at 1368, 1376.
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`The Federal Circuit then upheld the district court’s “refus[al] to consider” allegedly invalidating
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`references “in light of the absence of testimony explaining their relevance.” Id. at 1376.
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`Second, Google quotes Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329
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`(Fed. Cir. 2009), for the point that “a jury’s deliberation ‘may include recourse to logic, judgment,
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`and common sense available to the person of ordinary skill that do not necessarily require
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`1
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`explication in any reference or expert opinion.’” D.I. 576 at 1. But Perfect Web acknowledged that
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`“[i]f the relevant technology were complex, the court might require expert opinions.” Id. at 1330.
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`And Google omits that the Federal Circuit already rejected Google’s reliance on Perfect Web when
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`Google previously tried to invalidate the Asserted Claims:
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`[I]n Perfect Web, the only case Appellees identifies [sic] in which common sense
`was invoked to supply a limitation that was admittedly missing from the prior art,
`the limitation in question was unusually simple and the technology particularly
`straightforward.… By contrast, the missing search at issue here “plays a major role
`in the subject matter claimed” and “affects much more than step (i).” … Thus, the
`facts in Perfect Web are distinguishable from the case at bar and ought to be
`treated as the exception, rather than the rule.
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`Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1362 (Fed. Cir. 2016) (citations omitted).
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`Just as Perfect Web does not warrant using common sense to supply limitations of the
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`Asserted Claims, it does not justify dispensing with expert testimony. Perfect Web involved an
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`admittedly simple technology and dispute: “the parties agreed that ordinary skill in the relevant art
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`required only a high school education and limited marketing and computer experience,” and they
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`disputed only whether it was obvious to repeat prior (and stipulated-to-be-obvious) steps. 587 F.3d
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`at 1330. Unlike Perfect Web, the Asserted Claims depend on the complex internal workings of
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`computer systems. Google repeatedly asserted that jurors must “look under the hood” since the
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`claims require “that under the hood these computer systems work in a very particular way,” 4/24
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`Tr. (Opening Arg.) 89:3-18:
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`[U]nder the hood is where all the difference lies. Because if all you looked at was
`what the user sees, you would see that what a user sees using something that
`Arendi said was in this patent, is identical to what existed with Apple Data
`Detectors and CyberDesk, and other things. What makes anything different is
`what’s under the hood in this system.
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`Id. at 89:19-25. Looking “under the hood,” Google’s infringement expert, Dr. Rinard, testified that
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`the structure and locus of source code determines whether limitations are met. 4/27 Tr. (Rinard)
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`2
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`915:4-917:4. Arendi’s infringement expert, Dr. Smedley, explained complex code for hours. E.g.,
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`4/25 Tr. (Smedley) 295:5-297:4. And both parties presented expert testimony on invalidity.
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`Any “claim that the technology is simple is belied by the fact that both sides believed it
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`necessary to introduce extensive expert testimony regarding the content of the prior art.” Alexsam,
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`715 F.3d at 1348 (holding expert testimony required). Exhibits relied on in Google’s invalidity
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`case also included technical descriptions of software architecture. E.g., DTX-0017.002 (describing
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`parameters passed into method calls and supported APIs comprising CyberDesk); DTX-0190
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`(code for alleged “write a letter w. e-mail addr” script used to support ADD). And whereas the
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`POSITA in Perfect Web had only “a high school education and limited marketing and computer
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`experience,” a POSITA here had a B.S. in computer science or engineering and about two years
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`of work experience designing user applications and software. 4/25 Tr. (Smedley) 304:12-16.
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`The facts of this action not only make it unlike Perfect Web but also place it among cases
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`that insisted on detailed expert testimony. In Koito, 381 F.3d at 1152 n.4, the “district court erred
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`in concluding that explanatory testimony … was unnecessary because of this Court’s decision[]
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`in Union Carbide Corp. v. American Can Co., 724 F.2d 1567 (Fed.Cir.1984).” Union Carbide had
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`upheld invalidity of a patent for a “very simple means and method of dispensing plastic bags”
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`despite lacking expert analysis. Id. The Federal Circuit limited Union Carbide to that context:
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`“[W]e found anticipation because the references and the patent were “easily understandable” and
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`the patentee, rather than the alleged infringer, provided explanatory analysis regarding the prior
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`art references.” Id. But the Koito patent was “not an ‘easily understandable’ patent” and, like the
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`’843 Patent, could not be invalidated without expert testimony. Id. Likewise, Proveris Sci. Corp.
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`v. Innovasystems, Inc., 536 F.3d 1256, 1267 (Fed. Cir. 2008), affirmed JMOL of no-invalidity
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`where the infringer lacked expert testimony because the “subject matter [was] sufficiently complex
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`3
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`to fall beyond the grasp of an ordinary layperson.” And in Carrier Corp. v. Goodman Glob., Inc.,
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`64 F. Supp. 3d 602, 616 (D. Del. 2014), this Court required expert opinion to prove anticipation
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`of a patent involving “complex technology, i.e., controlling HVAC systems using algorithms.”
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`Google challenges, in note 2, only one case Arendi cited, Schumer v. Lab. Comp. Sys., Inc.,
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`308 F.3d 1304 (Fed. Cir. 2002)—urging the Court to ignore Schumer because it “concerned
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`summary judgment” rather than JMOL. But Schumer isn’t about whether to credit experts; rather,
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`it confirms detailed expert testimony is generally required to invalidate a patent. Indeed, the
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`Federal Circuit has explicitly applied Schumer’s requirement to post-trial motions. Koito, 381 F.3d
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`at 1144, 1152; see also Inline Connection Corp. v. EarthLink, Inc., 684 F. Supp. 2d 496, 515 (D.
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`Del. 2010) (granting JMOL of no-anticipation). Google does not even mention the remaining
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`authority Arendi cited that requires detailed expert testimony. E.g., D.I. 560 at 8-9, 12.
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`As Arendi showed in its opening brief, Dr. Fox’s testimony is conclusory, ignores claim
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`limitations, and does not provide sufficient evidence of invalidity. Google’s opposition does not
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`rebut these characterizations. Google does not identify testimony by Dr. Fox that it alleges would
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`explain each limitation. Rather, Google sticks to its faulty position that expert testimony is not
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`required and argues that some amalgam of other evidence was enough. It was not.
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`II.
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`GOOGLE’S “SEE, E.G.,” BRIEF DOES NOT ESTABLISH INVALIDITY.
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`Even were expert testimony unnecessary, Google’s woolly “see, e.g.,” string-cites do not
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`plug the holes in its evidence. “It is not the trial judge’s burden to search through lengthy
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`technological documents for possible evidence” of invalidity. Biotec Biologische v. Biocorp, Inc.,
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`249 F.3d 1341, 1353 (Fed. Cir. 2001). Many string-cites do not correspond to Google’s assertions,
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`which themselves ignore limitations and advance inconsistent theories of invalidity.
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`Google’s treatment of limitations relating to first and second computer programs illustrates
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`these shortcomings. Google offers a one-sentence retort to Arendi’s argument that Dr. Fox ignored
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`4
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`the requirement that the first computer program “set up” the input device: Drs. Fox and Dey
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`“explained how services are integrated so that an applet or browser dynamically provided ActOn
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`Buttons depending on the type of first information.” D.I. 576 at 6. The relevance of the “See, e.g.”
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`citations that follow is left unexplained. Neither Dr. Dey’s testimony nor the first two passages
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`from Dr. Fox’s testimony states that an applet or browser sets up the input device. At 5/1 Tr.
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`1179:9-12, Dr. Fox does state, “So it’s providing an input device. It’s configured by this browser
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`with all this stuff, CyberDesk running in it. So it is configured by the first computer program.” But
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`Dr. Fox’s “its” are inscrutable, and he identifies no basis for these conclusions.
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`Addressing “in consequence of receipt by the first computer program of the user
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`command… causing a search…,” Google asserts that “Drs. Dey and Fox testified that clicking an
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`ActOn Button… was a command to the applet (e.g., e-mail window) or browser to cause a search.”
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`D.I. 576 at 7. A bare “See, e.g.” string-cite to six transcript passages and two full exhibits follows.
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`Although several of the passages discuss use of an ActOn Button, none discuss receipt of the user
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`command by the first computer program or a search caused by that receipt.
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`Google’s subsequent discussion of first and second computer programs is riddled with
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`inconsistency. According to Google at 7, either the “web browser … or individual applets can be
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`considered the ‘first computer program’ and either ‘Switchboard or Contact Manager can be
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`considered the ‘second computer program.’” But if the browser is the first computer program, there
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`is no second computer program because Switchboard and Contact Manager are applets in the
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`browser. E.g., DTX-0013.0002. If an applet (like the email reader) is the first computer program,
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`it doesn’t “set up” the input device or receive the user command. DTX-0013.0002 (separate ActOn
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`applet “creates” buttons); DTX-0014.0002-3 (“list of buttons is provided by the IntelliButton”).
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`5
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`Google’s alleged proof (at 8) of claim 30’s invalidity also falls short. Here, Google’s “see,
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`e.g.” method of argument cites one passage from Dr. Fox, three from Dr. Dey, and two trial
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`exhibits. Dr. Fox identifies a “little button that says ‘New Contact’” (in Fig. 1 on DTX-0014.002)
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`as the alleged “prompt” for updating the information source. 5/1 Tr. 1181:2-1182:1. That “little
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`button” is not visible in DTX-0014.002.1 Dr. Dey’s testimony, in turn, speaks to the general ability
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`to open and edit contacts; but not to the “prompt” identified by Dr. Fox nor to any other. See 4/27
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`Tr. 853:24-854:4; 873:20-874:12. For exhibits, Google inexplicably cites all of DTX-10. Google
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`cites DTX-11 (again in its entirety) allegedly because it somewhere shows “various updateable
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`contact information fields for Contact Manager.” D.I. 576 at 8. But Claim 30 does not call for “an
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`updatable information source.” It requires “providing a prompt.”
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`III. GOOGLE HAS NOT SHOWN HOW ADD DISCLOSES LIMITATIONS.
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`Mischaracterizing Arendi’s brief, Google suggests that Arendi only challenges Dr. Fox’s
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`failure to establish ADD’s disclosure of the “if searching finds…” limitation. D.I. 576 at 10. Not
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`so. Arendi focused on that limitation because Dr. Fox did not analyze any others. D.I. 560 at 12.
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`Google does not identify testimony by Dr. Fox establishing disclosure of other elements.2
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`Google’s brief confirms it lacks evidence that ADD discloses the “if searching finds…”
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`limitation. It identifies one type of action (“Write a Letter”). D.I. 576 at 11. Thus, the type of action
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`performed using first information cannot depend on the type(s) of first information. Google’s
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`argument at 11-12 that ADD disclosed Claim 30 has at least two gaps. First, Google only discusses
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`an alleged prompt for email addresses—not for a plurality of types of first information, as required.
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`1 DTX-00015.0001 has a “Save ContactInfo using Contact” button and DTX-0014.002 describes
`a suggestion to “put the author’s contact information in the contact manager.” But those disclosures
`do not meet the limitation: a button is only available for email addresses (not a plurality of types
`of information) and no evidence shows searching the Contact manager for email addresses.
`2 If Google thinks other limitations can be found within the 33 exhibits that it cites as “documentary
`evidence” of ADD and CyberDesk, it doesn’t say where to look. D.I. 576 at 12.
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`6
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`Second, Google lacks evidence that Claris E-Mailer’s address book, to which email addresses were
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`allegedly added, is “the information source” searched using “Write a Letter.” Google asserts “The
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`MacWord demonstrations show that ADD searched for addresses in ClarisWorks,” but those
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`videos state that the search was in “Now Contact.” DTX-0777 at 2:11:43-2:12:01; DTX-0882 at
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`1:23-1:43. And Mr. Miller’s testimony that Claris E-mailer was “probably” on the demonstrative
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`laptops, 4/24 Tr. 1034:8-10, is irrelevant: the issue is not whether Claris E-mailer was installed but
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`whether the “Write a Letter” function searched its address book. No evidence shows that it did.3
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`IV. GOOGLE INTRODUCED NO EVIDENCE OF WHAT WORD ’97 DID.
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`Google identifies no evidence that Word ’97 taught any limitation. Arguing to the contrary,
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`Google first points to Dr. Fox’s bare conclusion that “Word used Approach 1.” D.I. 576 at 13. This
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`is meaningless. Second, Google notes Mr. Hedløy’s testimony that he built his invention in Word
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`using Visual Basic for Applications (“VBA”). Id. at 13-14. That accomplishment is beside the
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`point. Of course, Mr. Hedløy’s invention practiced his invention. The issue isn’t whether Mr.
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`Hedløy used VBA, but rather whether features inherent in Word would have suggested that a
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`POSITA leverage VBA to place the so-called “shortcut tools” within the first computer program.
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`Finally, Google notes Mr. Hedløy’s testimony that a POSITA would understand “how to create
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`OneButton functionality” in Word. Id. at 188:4-13. But Mr. Hedløy was testifying that a POSITA
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`had the skill to implement his invention once the invention was disclosed. Mr. Hedløy never said
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`a POSITA would find it obvious to combine the so-called “shortcut tools” with other limitations.
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`3 Google admits at 12 to arguing obviousness based on ADD in view of CyberDesk. That violation
`of Google’s representations merits a new trial. See D.I. 560 at 14. On April 21, Google stated it
`would pursue five or six combinations. 4/21 Tr. at 114:24-116:17. On April 22, Google disclosed
`them. D.I. 560-1 at 1. Google asserts that Arendi should have understood that by disclosing
`“CyberDesk + Apple Data Detectors” Google stated an intent to pursue not only CyberDesk in
`view of ADD, but also ADD in view of CyberDesk. That’s nonsense—and would have resulted in
`disclosure of 10 combinations, rather than the 5 or 6 to which Google committed on April 21.
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`7
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`V.
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`ARENDI DID NOT ADMIT LIMITATIONS’ PRIOR DISCLOSURE.
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`At pages 2-3 and 13, Google reprises Dr. Fox’s faulty assertion that Arendi admitted via
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`the AESD for a different patent application that CyberDesk and ADD disclosed elements of the
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`Asserted Claims. Rather than analyze what Arendi said in that AESD, Google quotes Dr. Fox’s
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`statements about what Arendi supposedly “meant.” E.g., D.I. 576 at 2-3. Google’s approach fails
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`to answer Arendi’s challenge that the AESD offered no support for Dr. Fox’s opinion. See D.I.
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`560 at 7-8, 15. Google inaccurately states that “Mr. Hedl[ø]y conceded” its view. D.I. 576 at 2
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`(citing 4/24 Tr. 205:25-207:19). But Mr. Hedløy made no such concession. See id. Contrary to
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`Google’s assertion, Arendi also did not “expressly rel[y]” on analysis within the AESD when
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`prosecuting the ’843 Patent, but instead stated that the “references analyzed in the [AESD were]
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`of particular interest.” DTX-2.0180-81 (emphasis added). Nothing in that AESD for a different
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`patent application—or in Arendi’s references to it or in DTX-2.0180-81 or in Mr. Hedløy’s trial
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`testimony—admitted that CyberDesk or ADD disclosed most elements of the asserted claims.
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`VI. GOOGLE IMPROPERLY PRESENTED ESTOPPED ART AT TRIAL.
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`Arendi seeks JMOL, or a new trial, based on evidence presented at trial—not, as Google
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`contends, reconsideration of pre-trial rulings. Pre-trial rulings allowing Google to present
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`CyberDesk were made over Arendi’s opposition and are preserved for appeal, e.g., 4/24 Tr. 4:19-
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`14:11, as are the Court’s summary judgment rulings. But trial also confirmed that Google’s sole
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`evidence of CyberDesk consisted of printed publications it could have raised during IPR. “Simply
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`swap[ping] out publications that were available through a diligent search with the same prior art,
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`only in a slightly different format” is impermissible. Wasica Fin. GmbH v. Schrader Int’l, Inc.,
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`432 F. Supp. 3d 448, 453–54, n.7 (D. Del. 2020). That is exactly what Google did here.
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`First, the Court’s pre-trial adoption of the “the approach and analysis laid out by Judge
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`Noreika in her opinion in Chemours vs. Daikin” was misguided, as that case did not deal with the
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`Case 1:13-cv-00919-JLH Document 595 Filed 07/28/23 Page 10 of 12 PageID #: 59781
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`circumstances here. 4/24 Tr. 12:5-7. Chemours held the Defendant could present certain existing
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`physical products as invalidating references at trial, “regardless of whether those products are
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`‘cumulative’” of “paper art.” Chemours v. Daikin, No. CV 17-1612 (MN), 2022 WL 2643517, at
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`*1 (D. Del. July 8, 2022). But here Google did not present a physical CyberDesk product: It only
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`presented printed publications, and deposition testimony to narrate the publications. Judge
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`Noreika’s withholding of estoppel in Chemours—where there was a physical, commercialized
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`prior art product separate from the “paper art” patents—relied on the fact that “Daikin could not
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`have raised the prior-art products during the IPR proceedings.” Id. That is not true here: Google
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`could have raised at IPR the same CyberDesk publications that it showed the jury.4
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`Second, not only was the Court’s adoption of Chemours misguided, but it also contravened
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`the law of this case. At summary judgment, the Court (Stark, J.) ruled that the purported CyberDesk
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`“system” would be estopped under 35 U.S.C. § 315(e)(2) if it were “‘materially identical’ to the
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`references that could have been raised during the ’843 patent IPR.” Dkt. 399 at 14. This holding—
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`the majority view—was law of the case. Home Depot USA, Inc. v. Lafarge N. Am., Inc., 59 F.4th
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`55, 61 (3d Cir. 2023) (“The law of the case doctrine ‘prevents reconsideration of legal issues
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`already decided in earlier stages of a case.’”). There was no basis for this Court to overturn Judge
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`Stark’s summary judgment ruling by looking to Judge Noreika’s analysis in a different case.
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`During the trial, Google did exactly what Judge Stark held would trigger IPR estoppel—it
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`presented CyberDesk without any evidence of a CyberDesk “system” apart from the publications.5
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`4 Google cites Chemours, 2022 WL 2643517, for its claim that § 315(e)(2) only estops products if
`a single publication evidences that product. But that case nowhere adopts Google’s supposed rule.
`5 Google wrongly claims Arendi “forfeited any argument that cumulativeness must be decided on
`the trial evidence.” D.I. 576 16. Not so. Google cites the Court’s statement that a pre-trial
`“evidentiary hearing is not required for the Court to rule on the issue of estoppel.” Id. (citing 4/24
`Tr. 10:15-19). Arendi’s agreement with the proposition does not forfeit this motion.
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`9
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`Case 1:13-cv-00919-JLH Document 595 Filed 07/28/23 Page 11 of 12 PageID #: 59782
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`Google did not bring a working “CyberDesk system” to trial. It just played deposition testimony
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`of one of the authors of the CyberDesk publications marching through the publications one by one.
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`The 15 exhibits Google admitted through that testimony are printed publications it could
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`have raised in its IPR. Webpages (like DTX-8 and DTX-28) qualify as printed publications subject
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`to IPR estoppel. Avanos Med. Sales, LLC v. Medtronic Sofamor Danek USA, Inc., 2021 WL
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`8693677, at *1 (W.D. Tenn. Oct. 8, 2021). Google’s argument that certain exhibits (DTX-14 and
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`DTX-20) were “not accepted for publication” is a non-sequitur, as they were publicly available
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`academic papers cited on the face of the ’843 Patent. See PX-001 at 4 (citing both). The slides
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`Google introduced (DTX-11 and DTX-15) were publicly available on the same website as the
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`other CyberDesk publications cited by the ’843 Patent. See DTX-11 and DTX-15 (bearing web
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`address in footer). And Google’s 15 publications are the only evidence Google presented about
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`CyberDesk that was germane to its invalidity theory. Google characterizes Dr. Dey’s testimony as
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`“mak[ing] CyberDesk a far more understandable and compelling reference,” D.I. 576 at 18-19, but
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`using a narrator to make a publication “more compelling” does not transform it into non-estopped
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`art. Google identifies only one aspect of Cyberdesk that it contends is exclusively substantiated by
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`Dr. Dey’s testimony: “that CyberDesk could input text or suggest additional reading in a working
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`document.” D.I. 576 at 18. But the testimony Google cites is irrelevant to invalidity. See D.I. 560
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`at 18-19. Google thus did exactly what this Court (Stark, J.) and numerous others have rejected: it
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`took an invalidity mulligan by disguising estopped publications as a “system.”6
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`VII. CONCLUSION
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`Arendi respectfully requests that the Court grant its motions for JMOL or for a new trial.
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`6 Likewise for Word, Google presented almost no evidence at all—let alone any evidence that
`differentiated the Word “system” from the printed publications cited by the ’843 Patent. See supra.
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`10
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`Case 1:13-cv-00919-JLH Document 595 Filed 07/28/23 Page 12 of 12 PageID #: 59783
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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: July 21, 2023
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`Of Counsel:
`
`SUSMAN GODFREY LLP
`Seth Ard (pro hac vice)
`Max Straus (pro hac vice)
`Beatrice Franklin (pro hac vice)
`SUSMAN GODFREY, L.L.P.
`1301 Avenue of the Americas, 32nd Floor
`New York, New York 10019
`Tel: (212) 336-8330
`sard@susmangodfrey.com
`mstraus@susmangodfrey.com
`bfranklin@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
`
`11
`
`