This document is a memorandum opinion from a US District Court case between I/P Engine, Inc. and various defendants including AOL, Google, and others. The court is determining an ongoing royalty rate for the defendants' continued infringement of I/P Engine's patents related to online advertising systems. The court considers the 3.5% running royalty rate from the previous jury verdict as a starting point. After analyzing additional factors related to the defendants now being adjudged infringers, the court sets the ongoing royalty rate at 6.5%, consisting of a 4.6% base rate plus a 1.9% enhancement for willful infringement.
PruvIt Ventures VS ForeverGreen International Lawsuit filedPruvit
http://meta.pruvitnow.com Pruvit Ventures has filed a lawsuit against ForeverGreen International. Pruvit is shipping product today. For detailed info check Troy Dooly's post and video: http://mlmhelpdesk.com/breaking-mlm-news-pruvit-ventures-files-federal-lawsuit-against-forevergreen-aka-fg-express/
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
• Judgment of Infringement Entered as Sanction
• Patent Exhaustion Does Not Apply to Harvested Seeds
• Judges Disagree on § 101 Standards
• Litigation Is Not a Domestic Industry
Countdown to 2021: 60 Important Supreme Court Decisions for Rhode Island Civ...Nicole Benjamin
As we countdown to 2021, we look back on the important civil decisions of the past five Rhode Island Supreme Court terms and the issues of first impression, practice pointers, and significant holdings that fill the pages of the Atlantic Reporter.
For your initial posting of no less than 350 words, please s.docxmecklenburgstrelitzh
For your initial posting of no less than 350 words, please state the issue(s),
holding and the court's rationale for its holding. Also, state whether you agree with the court's decision explaining your position
ORACLE AMERICA, INC., Plaintiff, v. GOOGLE INC., Defendant.
No. C 10-03561 WHA
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2011 U.S. Dist. LEXIS 141399
December 6, 2011
, Decided
December 6, 2011
, Filed
OPINION:
INTRODUCTION
In this patent and
copyright
infringement action involving Java and Android, defendant moves in limine to strike portions of plaintiff's revised expert
[*5]
damages report. For the following reasons, the motion is tentatively
Granted in Part
and
Denied in Part.
STATEMENT
The facts of this action have been set forth in previous orders (
see
Dkt. Nos. 137, 230, 433). Google's instant motion seeks to strike portions of the revised damages report by Oracle's expert, Dr. Iain Cockburn. A prior order rejected Dr. Cockburn's first damages report for failing to apportion the value of the asserted claims and instead using the total value of Java and Android in calculating damages, among other reasons (Dkt. No. 230).
In his second damages report, Dr. Cockburn estimated damages, from 2007 through 2011, to be $201.8 million for patent infringement, $823.9 million in unjust enrichment for
copyright
infringement (not deducting for expenses or apportionment), and $136.2 million in lost profits or $102.6 million in lost licensing fees for
copyright
infringement (Cockburn Report [Rpt] ¶¶ 47, 467, 496, and 474; Exhs. 3, 22, 23). Dr. Cockburn calculated patent damages using a hypothetical negotiation method: he began with a $100 million starting value that was based on real-world negotiations between the parties in 2006, then adjusted downward for patent apportionment,
[*6]
then adjusted upward for lost revenue that was expected from the licensing agreement (Rpt ¶ 19). The same methodology was used to calculate a hypothetical lost license fee for
copyright
infringement (Rpt Exhs. 23-24). Unjust enrichment was calculated by adding together Android's ad revenue, the hardware revenue from selling Nexus phones, and applications sales in the Android Market store (Rpt ¶ 466). Lost profits were calculated by adding together lost revenue from licensing Java, ancillary revenue from back-end services, and revenue from a smartphone operating system (Rpt ¶ 475). Using similar methodology, Dr. Cockburn also estimated future royalties in 2012 to be $1.2 billion in unjust enrichment for
copyright
infringement, $102.6 million in lost license fees for
copyright
infringement, and $205.2 million for patent damages (Cockburn Rpt Exhs. 22, 25, 18).
ANALYSIS
An expert witness may provide opinion testimony "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and meth.
PruvIt Ventures VS ForeverGreen International Lawsuit filedPruvit
http://meta.pruvitnow.com Pruvit Ventures has filed a lawsuit against ForeverGreen International. Pruvit is shipping product today. For detailed info check Troy Dooly's post and video: http://mlmhelpdesk.com/breaking-mlm-news-pruvit-ventures-files-federal-lawsuit-against-forevergreen-aka-fg-express/
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
• Judgment of Infringement Entered as Sanction
• Patent Exhaustion Does Not Apply to Harvested Seeds
• Judges Disagree on § 101 Standards
• Litigation Is Not a Domestic Industry
Countdown to 2021: 60 Important Supreme Court Decisions for Rhode Island Civ...Nicole Benjamin
As we countdown to 2021, we look back on the important civil decisions of the past five Rhode Island Supreme Court terms and the issues of first impression, practice pointers, and significant holdings that fill the pages of the Atlantic Reporter.
For your initial posting of no less than 350 words, please s.docxmecklenburgstrelitzh
For your initial posting of no less than 350 words, please state the issue(s),
holding and the court's rationale for its holding. Also, state whether you agree with the court's decision explaining your position
ORACLE AMERICA, INC., Plaintiff, v. GOOGLE INC., Defendant.
No. C 10-03561 WHA
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2011 U.S. Dist. LEXIS 141399
December 6, 2011
, Decided
December 6, 2011
, Filed
OPINION:
INTRODUCTION
In this patent and
copyright
infringement action involving Java and Android, defendant moves in limine to strike portions of plaintiff's revised expert
[*5]
damages report. For the following reasons, the motion is tentatively
Granted in Part
and
Denied in Part.
STATEMENT
The facts of this action have been set forth in previous orders (
see
Dkt. Nos. 137, 230, 433). Google's instant motion seeks to strike portions of the revised damages report by Oracle's expert, Dr. Iain Cockburn. A prior order rejected Dr. Cockburn's first damages report for failing to apportion the value of the asserted claims and instead using the total value of Java and Android in calculating damages, among other reasons (Dkt. No. 230).
In his second damages report, Dr. Cockburn estimated damages, from 2007 through 2011, to be $201.8 million for patent infringement, $823.9 million in unjust enrichment for
copyright
infringement (not deducting for expenses or apportionment), and $136.2 million in lost profits or $102.6 million in lost licensing fees for
copyright
infringement (Cockburn Report [Rpt] ¶¶ 47, 467, 496, and 474; Exhs. 3, 22, 23). Dr. Cockburn calculated patent damages using a hypothetical negotiation method: he began with a $100 million starting value that was based on real-world negotiations between the parties in 2006, then adjusted downward for patent apportionment,
[*6]
then adjusted upward for lost revenue that was expected from the licensing agreement (Rpt ¶ 19). The same methodology was used to calculate a hypothetical lost license fee for
copyright
infringement (Rpt Exhs. 23-24). Unjust enrichment was calculated by adding together Android's ad revenue, the hardware revenue from selling Nexus phones, and applications sales in the Android Market store (Rpt ¶ 466). Lost profits were calculated by adding together lost revenue from licensing Java, ancillary revenue from back-end services, and revenue from a smartphone operating system (Rpt ¶ 475). Using similar methodology, Dr. Cockburn also estimated future royalties in 2012 to be $1.2 billion in unjust enrichment for
copyright
infringement, $102.6 million in lost license fees for
copyright
infringement, and $205.2 million for patent damages (Cockburn Rpt Exhs. 22, 25, 18).
ANALYSIS
An expert witness may provide opinion testimony "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and meth.
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
ORACLE AMERICA, INC., Plaintiff, v. GOOGLE INC., Defendant.No..docxhopeaustin33688
ORACLE AMERICA, INC., Plaintiff, v. GOOGLE INC., Defendant.
No. C 10-03561 WHA
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2011 U.S. Dist. LEXIS 141399
December 6, 2011, Decided
December 6, 2011, Filed
OPINION:
INTRODUCTION
In this patent and copyright infringement action involving Java and Android, defendant moves in limine to strike portions of plaintiff's revised expert [*5] damages report. For the following reasons, the motion is tentatively Granted in Part and Denied in Part.
STATEMENT
The facts of this action have been set forth in previous orders (see Dkt. Nos. 137, 230, 433). Google's instant motion seeks to strike portions of the revised damages report by Oracle's expert, Dr. Iain Cockburn. A prior order rejected Dr. Cockburn's first damages report for failing to apportion the value of the asserted claims and instead using the total value of Java and Android in calculating damages, among other reasons (Dkt. No. 230).
In his second damages report, Dr. Cockburn estimated damages, from 2007 through 2011, to be $201.8 million for patent infringement, $823.9 million in unjust enrichment for copyright infringement (not deducting for expenses or apportionment), and $136.2 million in lost profits or $102.6 million in lost licensing fees for copyright infringement (Cockburn Report [Rpt] ¶¶ 47, 467, 496, and 474; Exhs. 3, 22, 23). Dr. Cockburn calculated patent damages using a hypothetical negotiation method: he began with a $100 million starting value that was based on real-world negotiations between the parties in 2006, then adjusted downward for patent apportionment, [*6] then adjusted upward for lost revenue that was expected from the licensing agreement (Rpt ¶ 19). The same methodology was used to calculate a hypothetical lost license fee for copyrightinfringement (Rpt Exhs. 23-24). Unjust enrichment was calculated by adding together Android's ad revenue, the hardware revenue from selling Nexus phones, and applications sales in the Android Market store (Rpt ¶ 466). Lost profits were calculated by adding together lost revenue from licensing Java, ancillary revenue from back-end services, and revenue from a smartphone operating system (Rpt ¶ 475). Using similar methodology, Dr. Cockburn also estimated future royalties in 2012 to be $1.2 billion in unjust enrichment for copyright infringement, $102.6 million in lost license fees for copyright infringement, and $205.2 million for patent damages (Cockburn Rpt Exhs. 22, 25, 18).
ANALYSIS
An expert witness may provide opinion testimony "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." FRE 702. District courts thus "are charged with [*7] a 'gatekeeping role,' the objective of which is to ensure that expert testimony admitted into evidence is both reliable and relevant." Sundance, Inc. v..
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
Riverisland: Inordinate Burdens or Leveling the Playing Field, California Litigation, Vol. 27, No. 2 (July 2014).
Discusses the litigation implications of the new fraud exception to the parol evidence rule, including the likely coming application to at-will employment contracts.
Judge Mosman avoided directly ruling on the application of SB 814 to the defense costs being sought by Schnitzer, instead holding that Schnitzer was judicially estopped from arguing that its defense counsel was "independent counsel" subject to SB 814.
Order granting the Vietnamese corporation VNG's motion to dismiss for lack of specific jurisdiction in Lang Van v. VNG Corp, C.D. Cal., Case No. SACV 14-0100 AG
Joint ad trade letter to ag becerra re ccpa 1.31.2019Greg Sterling
We strongly support the objectives of the California Consumer Privacy Act (CCPA), but we have notable concerns around the likely negative impact on California consumers and businesses from some of the specific language in the law. We provide this initial comment to provide you with information about the significant importance of a data-driven and ad-supported online ecosystem, industry efforts to protect privacy, and in section III of the letter draw your attention to several areas that can be addressed and improved through the rulemaking process. We will provide more detailed comments over the coming weeks.
a group of locksmiths has filed a new class action lawsuit against Google, Microsoft and Yahoo. They claim the search engines (Google in particular) are deliberately “flooding” organic results with “scam locksmith listings” known to be false.
In an extensive and lengthy argument, Amazon argues that interactions with the Alexa virtual assistant are free speech. That includes both the human speech commands and the AI/robot responses. Interestingly, Amazon cites Search King v. Google for the proposition that Alexa responses are like search results and entitled to the same editorial protections accorded Google under that ruling and related case law
European Court of Justice Press Release GS Media vs. SanomaGreg Sterling
[W]hen hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published. Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet. In such circumstances, and in so far as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public’.
Accelerate your Kubernetes clusters with Varnish CachingThijs Feryn
A presentation about the usage and availability of Varnish on Kubernetes. This talk explores the capabilities of Varnish caching and shows how to use the Varnish Helm chart to deploy it to Kubernetes.
This presentation was delivered at K8SUG Singapore. See https://feryn.eu/presentations/accelerate-your-kubernetes-clusters-with-varnish-caching-k8sug-singapore-28-2024 for more details.
UiPath Test Automation using UiPath Test Suite series, part 3DianaGray10
Welcome to UiPath Test Automation using UiPath Test Suite series part 3. In this session, we will cover desktop automation along with UI automation.
Topics covered:
UI automation Introduction,
UI automation Sample
Desktop automation flow
Pradeep Chinnala, Senior Consultant Automation Developer @WonderBotz and UiPath MVP
Deepak Rai, Automation Practice Lead, Boundaryless Group and UiPath MVP
JMeter webinar - integration with InfluxDB and GrafanaRTTS
Watch this recorded webinar about real-time monitoring of application performance. See how to integrate Apache JMeter, the open-source leader in performance testing, with InfluxDB, the open-source time-series database, and Grafana, the open-source analytics and visualization application.
In this webinar, we will review the benefits of leveraging InfluxDB and Grafana when executing load tests and demonstrate how these tools are used to visualize performance metrics.
Length: 30 minutes
Session Overview
-------------------------------------------
During this webinar, we will cover the following topics while demonstrating the integrations of JMeter, InfluxDB and Grafana:
- What out-of-the-box solutions are available for real-time monitoring JMeter tests?
- What are the benefits of integrating InfluxDB and Grafana into the load testing stack?
- Which features are provided by Grafana?
- Demonstration of InfluxDB and Grafana using a practice web application
To view the webinar recording, go to:
https://www.rttsweb.com/jmeter-integration-webinar
"Impact of front-end architecture on development cost", Viktor TurskyiFwdays
I have heard many times that architecture is not important for the front-end. Also, many times I have seen how developers implement features on the front-end just following the standard rules for a framework and think that this is enough to successfully launch the project, and then the project fails. How to prevent this and what approach to choose? I have launched dozens of complex projects and during the talk we will analyze which approaches have worked for me and which have not.
PHP Frameworks: I want to break free (IPC Berlin 2024)Ralf Eggert
In this presentation, we examine the challenges and limitations of relying too heavily on PHP frameworks in web development. We discuss the history of PHP and its frameworks to understand how this dependence has evolved. The focus will be on providing concrete tips and strategies to reduce reliance on these frameworks, based on real-world examples and practical considerations. The goal is to equip developers with the skills and knowledge to create more flexible and future-proof web applications. We'll explore the importance of maintaining autonomy in a rapidly changing tech landscape and how to make informed decisions in PHP development.
This talk is aimed at encouraging a more independent approach to using PHP frameworks, moving towards a more flexible and future-proof approach to PHP development.
Slack (or Teams) Automation for Bonterra Impact Management (fka Social Soluti...Jeffrey Haguewood
Sidekick Solutions uses Bonterra Impact Management (fka Social Solutions Apricot) and automation solutions to integrate data for business workflows.
We believe integration and automation are essential to user experience and the promise of efficient work through technology. Automation is the critical ingredient to realizing that full vision. We develop integration products and services for Bonterra Case Management software to support the deployment of automations for a variety of use cases.
This video focuses on the notifications, alerts, and approval requests using Slack for Bonterra Impact Management. The solutions covered in this webinar can also be deployed for Microsoft Teams.
Interested in deploying notification automations for Bonterra Impact Management? Contact us at sales@sidekicksolutionsllc.com to discuss next steps.
Essentials of Automations: Optimizing FME Workflows with ParametersSafe Software
Are you looking to streamline your workflows and boost your projects’ efficiency? Do you find yourself searching for ways to add flexibility and control over your FME workflows? If so, you’re in the right place.
Join us for an insightful dive into the world of FME parameters, a critical element in optimizing workflow efficiency. This webinar marks the beginning of our three-part “Essentials of Automation” series. This first webinar is designed to equip you with the knowledge and skills to utilize parameters effectively: enhancing the flexibility, maintainability, and user control of your FME projects.
Here’s what you’ll gain:
- Essentials of FME Parameters: Understand the pivotal role of parameters, including Reader/Writer, Transformer, User, and FME Flow categories. Discover how they are the key to unlocking automation and optimization within your workflows.
- Practical Applications in FME Form: Delve into key user parameter types including choice, connections, and file URLs. Allow users to control how a workflow runs, making your workflows more reusable. Learn to import values and deliver the best user experience for your workflows while enhancing accuracy.
- Optimization Strategies in FME Flow: Explore the creation and strategic deployment of parameters in FME Flow, including the use of deployment and geometry parameters, to maximize workflow efficiency.
- Pro Tips for Success: Gain insights on parameterizing connections and leveraging new features like Conditional Visibility for clarity and simplicity.
We’ll wrap up with a glimpse into future webinars, followed by a Q&A session to address your specific questions surrounding this topic.
Don’t miss this opportunity to elevate your FME expertise and drive your projects to new heights of efficiency.
Designing Great Products: The Power of Design and Leadership by Chief Designe...
Google vringo royalty_decision
1. Case 2:11-cv-00512-RAJ-TEM Document 1088 Filed 01/28/14 Page 1 of 8 PageID# 25029
-".ED
L.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
JAN 2 8 2014
Norfolk Division
CLEHK, US. DlSIHICl COURT
: •'•••
•
• •.
I/P ENGINE, INC.,
Plaintiff,
CIVIL ACTION NO. 2:1 lcv512
v.
AOL INC.,eta/.,
Defendants.
MEMORANDUM OPINION & ORDER
Before the Court is Plaintiffs Opening Brief on Post-Judgment Royalties, Dkt. Nos. 1028
(public version), 1038 (scaled version), Defendants' Opening Brief on Issues Raised in the
Court's August 14 Order. Dkt. Nos. 1020 (public version), 1033 (sealed version), and the parties'
responsive briefs. The parties have been unable to agree on the appropriate ongoing royalty rate.
Therefore, the rate is ripe for the Court's disposition, and the Court FINDS that the appropriate
rate is 6.5%.
I. BACKGROUND
On September 15, 2011, Plaintiff I/P Engine, Inc. filed a complaint against Defendants
AOL, Inc.. Google. Inc., IAC Search & Media, Inc., Gannett Company, Inc. and Target
Corporation in which I/P Engine alleged that the Defendants had infringed several of its patents
through their AdWords system. On November 6, 2012, a jury reached a verdict finding that the
Defendants had infringed the asserted claims of two of I/P Engine's patents. See Verdict Form,
Nov. 6, 2012, Dkt. No. 789. The jury awarded I/P Engine damages in the amount of
2. Case 2:11-cv-00512-RAJ-TEM Document 1088 Filed 01/28/14 Page 2 of 8 PageID# 25030
$30,496,155, which did not include interest. Id. The jury also awarded I/P Engine a running
royalty rate of 3.5%). Id. On November 20, 2012, the formal judgment of the Court was entered.
See Judgment of the Court, Nov. 20, 2012, Dkt. No. 801.
As a result of this favorable verdict, on December 18, 2012, I/P Engine asked this Court
for an award of post-judgment royalties from the date of entry of final judgment, November 20,
2012, until Defendants ceased infringing or until the infringed patents expire on April 4, 2016.
Dkt. No. 822. Further, it contended that the appropriate royalty base for an award was 20.9%),
and the appropriate royalty rate was 7% based on changed circumstances post-judgment. The
Court deferred ruling on I/P Engine's motion until after it ruled on various post-trial motions,
and on May 13, 2013, Defendants filed their Opposition to I/P Engine's Motion. Dkt. No. 938.
Defendants argued that I/P Engine was not entitled to any post-judgment royalties as a matter of
law, that in any event Defendants had ceased infringing even before the entry ofjudgment
because they had modified AdWords, and that if royalties were warranted, it should be in a lump
sum. On August 14, 2013, the Court entered an Order finding that I/P Engine was entitled to an
ongoing royalty with a royalty base of 20.9%, and that royalty payments should be made on a
quarterly basis. Dkt. No. 963.
The Court deferred ruling on two other issues. First, the Court ordered further discovery
and briefing as to Defendants' contention that they had ceased infringement on May 11, 2013,
finding that the relevant legal standard was whether Defendants' modified version of AdWords
("new AdWords") was nothing more than a colorable variation of the infringing product ("old
AdWords"). After the parties conducted discovery and filed their briefs, on January 21, 2014,
the Court entered an order finding that new AdWords was nothing more than a colorable
variation of old AdWords.
3. Case 2:11-cv-00512-RAJ-TEM Document 1088 Filed 01/28/14 Page 3 of 8 PageID# 25031
Second, the Court ordered the parties to meet to negotiate an appropriate ongoing royalty
rate, and to schedule a settlement conference if they were unable to come to an agreement, noting
that Federal Circuit precedent suggested that the parties should be given an opportunity to
negotiate the ongoing royalties rate. It also decided that the proper method to use to determine
the ongoing royalties rate was a modified Georgia-Pacific approach. On November 18, 2013,
the parties notified the Court that they were unable to resolve the rate issue, Dkt. No. 1060, and
on December 11, 2013, Magistrate Judge Lawrence R. Leonard entered a Settlement Conference
Order for January 22, 2014. Dkt. No. 1061. The parties were unable to resolve the matter at that
settlement conference. Accordingly, the matter is ripe for the Court's disposition.
II. DISCUSSION
Both parties agree that the appropriate starting point is the jury verdict, but disagree as to
what royalty rate the jury selected. Although the jury specifically indicated on the verdict form
that the "running royalty rate" was 3.5%>, Defendants contend that the jury actually found the rate
to be 0.5%. The Court declines to adopt this contention, which requires speculation as to the
jury's application of the Court's laches ruling, which of the multiple defendants to use as the
applicable baseline, and other factors. Additionally, Defendants have in other filings represented
to the Court that it should accept the 3.5%) figure and instead work backwards from the jury's
damages figures to adjust the royalty base, without explanation as to these conflicting
approaches. Accordingly, the Court will adopt as a starting point for its analysis the 3.5%) figure
that was clearly expressed by the jury. I/P Engine's damages expert, Dr. Stephen Becker,
specifically testified as to this rate at trial and the Court finds that his testimony was credible and
persuasive. Trial Tr. 845.
4. Case 2:11-cv-00512-RAJ-TEM Document 1088 Filed 01/28/14 Page 4 of 8 PageID# 25032
In any event, the jury verdict is not dispositive but only a starting point in the analysis,
because the jury verdict determined the rate for damages prior to the verdict of infringement.
Ascertaining the appropriate rate after a verdict of infringement requires the consideration of
additional factors and evidence. As the Federal Circuit has noted, "[pjrior to judgment, liability
for infringement, as well as the validity of the patent, is uncertain, and damages are determined
in the context of that uncertainty. Once a judgment of validity and infringement has been
entered, however, the calculus is markedly different because different economic factors are
involved." Amado v. Microsoft Corp., 517 F.3d 1353, 1362 (Fed. Cir. 2008). See also Boston
Scientific Corp. v. Cordis Corp., 838 F. Supp. 2d 259, 275 (D. Del. 2012) ("A post-verdict
royalty is fundamentally different from a pre-verdict royalty."). As the Court has previously
recognized, the key question is "what amount of money would reasonably compensate [I/P
Engine] for giving up [its] right to exclude yet allow an ongoing willful infringer to make a
reasonable profit." Dkt. No. 963, at 5 (quoting Pake LLC v. ToyotaMotor Corp., 609 F. Supp.
2d 620 (E.D. Tex. 2009)).
Reasoning that a jury verdict of infringement reduces the bargaining power of the
infringer in a hypothetical negotiation vis-a-vis the patentee, courts frequently find that the postverdict ongoing royalty rate should be higher than that found at trial. E.g., Creative Internet
Adver. Corp. v. Yahoo! Inc., 61A F. Supp. 2d 847, 861 (E.D. Tex. 2009) (noting that the "failure
to recognize the parties' changed legal status would create an incentive for every defendant to
fight each patent infringement case to the bitter end because without consideration of the
changed legal status, there is essentially no downside to losing" (quotation omitted)); Hynix
Semiconductor Inc. v. Rambus Inc., 609 F. Supp. 2d 951, 987 (N.D. Cal. 2009). I/P Engine
contends that the rate should be increased from 3.5%) to 5%, a nearly 43% increase. It relies
5. Case 2:11-cv-00512-RAJ-TEM Document 1088 Filed 01/28/14 Page 5 of 8 PageID# 25033
principally on a declaration by Dr. Becker describing the changed circumstances between the
parties. Defendants offer various reasons why Dr. Becker's declaration is unreliable and
continue to effectively argue for a lump sum despite the Court's previous ruling to the contrary.
In conducting a modified Georgia-Pacific analysis, the Court will focus on the factors
that have been impacted by changed circumstances between a 2004 and 2012 hypothetical
negotiation between the parties. Paice LLC v. Toyota Motor Corp., 609 F. Supp. 2d 620, 626
(E.D. Tex. 2009) (citing Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. Supp.
1116 (S.D.N.Y. 1970) (listing fifteen factors that may be considered in determining a reasonable
royalty)). For that reason, the Court declines to address Defendants' attempts to re-attack and relitigate the evidence presented and considered in the pre-trial proceedings and at the trial in this
case, as such evidence does not represent a changed circumstance between the parties. I/P
Engine's expert, Dr. Becker, points to four changed circumstances to justify its requested
increase: Defendants are now adjudged infringers, there is now a different owner of the patent
who is financially sound, AdWords' revenue impact is now better known, and certain
comparable licenses would no longer be subject to discounted rates and would range between
3.75%) and 5%o. See Georgia-Pacific Corp., 318 F. Supp. at 1120 (considering "[t]he opinion
testimony of qualified experts"). The Court finds that the first three of those four changed
circumstances, while all variations on the theme that Defendants are now adjudged infringers (a
fact that will be further accounted for to some extent in a willfulness enhancement, as described
below), are all relevant and weigh in favor of increasing the royalty rate (and are virtually
undisputed by Defendants). With the jury's verdict in hand, I/P Engine is in a much stronger
bargaining position than it would have been in 2004. The Court, however, places little weight on
Dr. Becker's fourth consideration, which concerns pre-verdict circumstances. As I/P Engine
6. Case 2:11-cv-00512-RAJ-TEM Document 1088 Filed 01/28/14 Page 6 of 8 PageID# 25034
itself explicitly argues, pre-verdict settlements and agreements are of only little relevance in this
analysis as it occurred when the bargaining positions of the parties were quite different. Dkt. No.
1054, at 9. Defendants do point to a license I/P Engine entered into after the judgment in this
suit with one of Defendants' competitors. See Georgia-Pacific Corp., 318 F. Supp. at 1120
(considering "[t]he royalties received by the patentee for the licensing of the patent in suit,
proving or tending to prove an established royalty"). However, that license is for an unspecified
amount of money, and Defendants provide little detail as to the competitor's use of the patent,
the competitor's likelihood of success in an infringement suit, and other factors that would allow
a probative comparision to I/P Engine's hypothetical 2012 negotiation with Defendants.
A further flaw in Dr. Becker's analysis is that it does not account for the substantial
investment that Defendants have made to improve old AdWords and improve new AdWords.
See Georgia-Pacific Corp., 318 F. Supp. at 1120 (S.D.N.Y. 1970) (considering "[t]he portion of
the realizable profit that should be credited to the invention as distinguished from non-patented
elements, the manufacturing process, business risks, or significant features or improvements
added by the infringer"). For these reasons, the Court finds it appropriate to increase the royalty
rate under the modified Georgia-Pacific approach to 4.6%) rather than to the 5%> requested by I/P
Engine.
I/P Engine further contends that the royalty rate should be increased by an additional 40%>
to account for the fact that Defendants are now willful infringers. Affinitiy Labs of Tex., LLC v.
BMWN. Am., LLC, 783 F. Supp. 2d 891, 899 (E.D. Tex. 2011) ("Following a jury verdict and
entry ofjudgment of infringement and no validity, a defendant's continued infringement will be
willful absent very unusual circumstances."). Defendants assert that they should not receive a
willfulness enhancement because they are now subject to a court-sanctioned royalty, and because
7. Case 2:11-cv-00512-RAJ-TEM Document 1088 Filed 01/28/14 Page 7 of 8 PageID# 25035
they have reasonable arguments of invalidity and non-infringement in their pending appeal in the
Federal Circuit. Both of these contentions are unavailing. Defendants point to no support for
the proposition that continued infringement following a jury verdict of infringement should not
be considered willful because of a court-ordered ongoing royalty. Instead, the case law this
Court is aware of directly contradicts their argument. E.g., Id.;Paice, 609 F. Supp. 2d at 631.
Defendants cite Active Video Networks, Inc. v. Verizon Commc'ns, 827 F. Supp. 2d 641 (E.D. Va.
2011), but that case involved infringement during a limited sunset period granted by the Court at
Defendants' request, a significantly different scenario from a royalty ordered by the Court at
Plaintiffs request to compensate for Defendants' choice to continue to infringe. As to
Defendants' second argument, in Mondis Tech. Ltd. v. Chimei InnoLux Corp., 822 F. Supp. 2d
639 (E.D. Tex. 2011), the Court thoughtfully explained why it found it appropriate to reject
similar arguments. Among other reasons, it stated that the Federal Circuit and not the district
court was in the proper position to evaluate the merits of the appeal, and that continued
infringement before appeal would nonetheless usually be considered willful. It then doubled the
royalty rate to account for willfulness, an enhancement on the high end of typical enhancements.
AffinityLabs, 784 F. Supp. 2d at 901 (increasing by 33%> and noting that "other courts in this
district have commonly awarded post-trial premiums in the range of 33%> to 50%>"). In light of
the treble damages normally awarded for willful infringement, the Court finds Defendants' 40%>
request reasonable.
Further, the relevant factors delineated in Read Corp. v. Portec, Inc., 970 F.2d 816, 82627 (Fed. Cir. 1992), weigh in favor of I/P Engine. Those factors are: 1) whether the infringer
deliberately copied, 2) whether the infringer had a good faith belief of invalidity or non
infringement, 3) the infringer's behavior as a party in the litigation, 4) the defendant's size and
8. Case 2:11-cv-00512-RAJ-TEM Document 1088 Filed 01/28/14 Page 8 of 8 PageID# 25036
financial condition, requiring consideration of whether any enhancement would severely impact
the defendant, 5) closeness of the case, 6) duration of defendant's misconduct, 7) remedial action
by the defendant, 8) defendant's motivation for harm, 9) whether the defendant attempted to
conceal its misconduct. Although I/P Engine does not dispute that there is no evidence of
copying, improper motive, or concealment (Factors 1, 8, and 9) on Defendants' part, Defendants'
misconduct continues presently (Factor 6) and Defendants have taken no remedial action (Factor
7). In fact, they have redesigned a system that clearly replicates the infringing elements of old
AdWords (Factor 2). Dkt. No. 1086. For all of these reasons, the Court finds I/P Engine's
request for a willfulness enhancement to be reasonable, and will enhance the 4.6% rate by just
over 40% to 6.5%.
III. CONCLUSION
For the reasons stated above, the Court FINDS that the appropriate ongoing royalty rate
is 6.5%,.
The Clerk is DIRECTED to send a copy of this Order to the parties.
IT IS SO ORDERED.
Norfolk, Virginia
Raymond A. Jadcson
January .^,2014
United stales District Judi