Google response

01980.51928/6304679.2

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

I/P ENGINE, INC.,

Plaintiff-Cross Appellant,

v. AOL INC., GOOGLE INC., IAC SEARCH &

MEDIA, INC., GANNETT COMPANY, INC., AND

TARGET CORPORATION,

Defendants-Appellants.

No. 2013-1307, -1313

DEFENDANTS-APPELLANTS’ OPPOSITION TO I/P ENGINE’S PETITION FOR RE-HEARING EN BANC

Dave Nelson QUINN EMANUEL URQUHART & SULLIVAN, LLP 500 West Madison St., Suite 2450 Chicago, IL 60661 (312) 705-7400 (312) 705-7401 (fax)

David A. Perlson Antonio R. Sistos Margaret P. Kammerud Joshua L. Sohn QUINN EMANUEL URQUHART & SULLIVAN LLP 50 California Street, 22nd Floor San Francisco, California 94111 (415) 875-6600 (415) 875-6700 (fax)

Attorneys for Defendants-Appellants AOL Inc., Google Inc., IAC Search & Media, Inc., Gannett Company, Inc., and Target Corporation.

Case: 13-1307 Document: 142 Page: 1 Filed: 11/03/2014

01980.51928/6304679.2

Daryl L. Joseffer KING & SPALDING LLP 1700 Pennsylvania Avenue NW Suite 200 Washington, D.C. 20006 (202) 737-0500 (202) 626-3737 (fax)

Adam M. Conrad KING & SPALDING LLP 100 N Tryon Street Suite 3900 Charlotte, NC 28202 (704) 503-2600 (704) 503-2622

Attorneys for Defendant-Appellant Google Inc.


01980.51928/6304679.2 i

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

I/P ENGINE, INC.,

Plaintiff-Cross Appellant,

v. AOL INC., GOOGLE INC., IAC SEARCH &

MEDIA, INC., GANNETT COMPANY, INC., AND

TARGET CORPORATION,

Defendants-Appellants.

No. 2013-1307, -1313

CERTIFICATE OF INTEREST

Counsel for the Defendants-Appellants certifies as follows:

1. The full name of every party or amicus represented by me is:

AOL Inc., Google Inc., IAC Search & Media, Inc., Gannett Corporation, Inc., Target Corporation

2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is:

Gannett Co., Inc.

3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are:

a) AOL Inc. – AOL has no corporate parent. Filings made with the Securities and Exchange Commission indicate that Dodge & Cox and FMR LLC each own ten percent (10%) or more of AOL’s stock.


01980.51928/6304679.2 ii

b) Google Inc. – None.

c) IAC Search & Media, Inc. – IAC/InterActiveCorp, a publicly traded company, owns all of the stock of IAC Search & Media, Inc.

d) Gannett Company, Inc. – None.

e) Target Corporation – None.

4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are:

Quinn Emanuel Urquhart & Sullivan: David A. Perlson, David L. Bilsker, Robert Wilson, David A. Nelson, Jennifer Kash, Emily C. O’Brien, Margaret P. Kammerud, Antonio R. Sistos, Howard Chen, Jennifer Ghaussy, Jennifer Polse, Joshua L. Sohn, Sarah Agudo; Kaufman & Canoles: Stephen E. Noona; Finnegan Henderson Farabow Garrett & Dunner: Robert L. Burns, II; King and Spalding: Daryl L. Joseffer, Adam M. Conrad.

Dated November 3, 2014 Respectfully submitted, By: /s/ David A. Perlson David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd floor San Francisco, CA 94131 Telephone: (415) 875-6344 Facsimile: (415) 875-6700 [email protected]

Attorney for Defendants-Appellants


01980.51928/6304679.2 iii

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................... 1

SUMMARY OF THE COURT’S OPINION ............................................................ 2

ARGUMENT ............................................................................................................. 5

I. THIS NON-PRECEDENTIAL DECISION IS AN INHERENTLY POOR CANDIDATE FOR EN BANC REVIEW ........................................... 5

II. I/P ENGINE’S ALLEGATION THAT THE COURT ERRED BY REVIEWING THE “ENTIRE” OBVIOUSNESS QUESTION DE NOVO DOES NOT WARRANT EN BANC REVIEW .................................. 6

III. THERE IS NO CONFLICT IN AUTHORITY REGARDING WHO SHOULD APPLY THE COMMON SENSE OF A SKILLED ARTISAN ...................................................................................................... 12

CONCLUSION ........................................................................................................ 15


01980.51928/6304679.2 iv

TABLE OF AUTHORITIES

Page

Cases

Amgen Inc. v. Hoechst Marion Roussel, Inc., 469 F.3d 1039 (Fed. Cir. 2006) .......................................................................... 12

Constant v. Adv. Micro-Devices, Inc., 848 F.2d 1560 (Fed. Cir. 1988) .......................................................................... 10

Johns Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342 (Fed. Cir. 1998) .......................................................................... 11

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) .................................................................................. 9, 13, 14

Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157 (Fed. Cir. 2006) .......................................................................... 11

Mintz v. Dietz & Watson, Inc., 679 F.3d 1372 (Fed. Cir. 2012) .......................................................................... 13

Perfect Web Tech., Inc. v. InfoUSA, Inc., 587 F.3d 1324 (Fed. Cir. 2009) .......................................................................... 13

PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342 (Fed. Cir. 2007) .......................................................................... 10

Statutes

Fed. R. App. P. 35(a)(1) ....................................................................................... 5, 15

Fed. R. App. P. 35(a)(2) ............................................................................................. 5

Fed. Cir. Rule 32.1(d) ................................................................................................ 5

Fed. Cir. Rule 35 .................................................................................................... 2, 5


1

INTRODUCTION

I/P Engine’s En Banc Petition expresses disagreement with this Court’s

decision, but provides no basis for the extraordinary step of en banc review.

Although I/P Engine asserts that this Court contravened precedent by

“explicitly reject[ing]” deferential review for factual findings underlying a

determination of obviousness (Pet., 4), I/P Engine cannot point to a single

statement from the Court’s decision purporting to apply de novo review to any

underlying factual question. Thus, I/P Engine’s real complaint is not with the

standard of review that the Court applied, but merely with the obviousness

conclusions that the Court reached based on the factual record before it. Needless

to say, I/P Engine’s dissatisfaction with the outcome of this case would be no basis

for en banc review, even if the Court’s decision were incorrect. And it is not.

I/P Engine also alleges an intra-circuit split about whether the common sense

of a skilled artisan is a legal question for the court or a factual question for the jury.

But there is no such split. The common sense of a skilled artisan is something that

a court can look to in answering the legal question of obviousness, and the factual

record developed in the litigation helps inform the court about what would be

within the common sense of a skilled artisan. All of the precedents cited by I/P

Engine are consistent with this settled framework.

I/P Engine itself previously told this Court that Defendants “ha[ve] not

pointed to one significant, complex, unique or precedent-setting issue within [their]


2

appeal.” (Dkt. 23 at 6.) In apparent agreement with I/P Engine, this Court

designated its decision non-precedential. That designation reflects the absence of

any important legal holdings in the decision and confirms that this case is a very

poor candidate for en banc review. As this Court’s Practice Notes state: “A

petition for rehearing en banc is rarely appropriate if the appeal was the subject of

a nonprecedential opinion by the panel of judges that heard it.” Practice Note to

Fed. Cir. Rule 35. This case is no exception to that rule, as the Court applied

settled legal principles to the record of this case.

SUMMARY OF THE COURT’S OPINION

As this Court’s opinion explained, the two Asserted Patents “relate to a

method for filtering Internet search results that utilizes both content-based and

collaborative filtering.” (Slip Op., 3.) “Specifically, the asserted claims describe a

filter system that combines content and collaborative data in filtering each

‘informon’ – or information item – for relevance to a user’s query.” (Id.)

The district court submitted interrogatories to the jury concerning factual

determinations relevant to obviousness, but did not ask the jury to opine on the

ultimate question of obviousness, which is a question of law. (A4170-72.) The

district court then issued a brief, two-page order reciting the jury’s findings and

declaring the asserted claims non-obvious, but did not provide any reasoning or

analysis to bridge the gap between the jury’s subsidiary findings and the court’s

own holding of non-obviousness. (A39-40.)


3

In reviewing the district court’s decision, this Court noted that Defendants

had proffered three lead obviousness references – Rose, WebHound, and Fab.

(Slip Op., 6.) All three references combined content-based and collaborative

filtering to filter information items. For example, the Court quoted a passage from

Fab explaining that “‘[b]y combining both collaborative and content-based filtering

systems,’ many of the weaknesses in each approach can be eliminated.” (Id. at 9

(quoting J.A. 5511).) And the Court quoted a passage from WebHound explaining

that “content-based and automated collaborative filtering are complementary

techniques, and the combination of [automated collaborative filtering] with some

easily extractable features of documents is a powerful information filtering

technique for complex information spaces.” (Id. (quoting J.A. 5427) (Court’s

brackets).) Indeed, the Court noted that “I/P Engine does not dispute that the prior

art disclosed hybrid content-based and collaborative filtering.” (Id. at 10.)

Nonetheless, as the Court explained, I/P Engine did contend “that it would

not have been obvious to a person of ordinary skill in the art to filter items for

relevance to a user’s query using combined content and collaborative data.” (Id.

(emphasis added).) In the words of I/P Engine’s litigation metaphor, references

like Rose, WebHound, and Fab threw search results “over a proverbial wall” to a

filtering system, “but did not also throw the search query ‘over the wall’ for use in

the filtering process.” (Id. (citing I/P Engine Appeal Br. at 6-7; 40-43.)) Thus, the

obviousness question for the Court was whether it would have been obvious to


4

bridge the gap between the claims and the obviousness references by performing

content/collaborative filtering for relevance to the query – i.e., throwing the query

“over the wall” along with the search results so that the query could be used in the

filtering process.

The Court cited several pieces of record evidence to conclude that it would

indeed have been obvious to use the query in the filtering process. First, the Court

quoted the shared specification for the Asserted Patents themselves, which

admitted in the Background section that “‘conventional search engines’ initiate a

search in response to an individual user’s query and use content-based filtering to

compare the query to accessed network informons.” (Id. (Court’s emphasis).)

“Given that its own patents acknowledge that using the original search query for

filtering was a ‘conventional’ technique, I/P Engine cannot now evade invalidity

by arguing that integrating the query into the filtering process was a non-obvious

departure from the prior art.” (Id. at 10-11.)

Second, the Court cited a separate reference, the Culliss reference, and noted

that the plain language of Culliss discloses using content and collaborative filtering

to filter Internet articles “for relevance to a user’s search query.” (Id. at 11.)

Third, the Court reasoned that “[v]ery basic logic dictates that a user’s

search query can provide highly pertinent information in evaluating the overall

relevance of search results.” (Id. at 14.) “Because the query was readily available

and closely correlated to the overall relevance of search results – and the prior art


5

unequivocally disclosed hybrid content-based/collaborative filtering – retaining the

query for use in filtering combined content and collaborative data was ‘entirely

predictable and grounded in common sense.’” (Id. at 15.)

Based on all this evidence and reasoning, the Court found that all asserted

claims were invalid for obviousness.

ARGUMENT

I. THIS NON-PRECEDENTIAL DECISION IS AN INHERENTLY POOR CANDIDATE FOR EN BANC REVIEW

“A petition for rehearing en banc is rarely appropriate if the appeal was the

subject of a nonprecedential opinion by the panel of judges that heard it.” Practice

Note to Fed. Cir. Rule 35. As this case confirms, that rule makes good sense. One

of the two reasons that the Federal Rules give for en banc review is “to secure or

maintain uniformity of the court’s decisions,” by preventing an erroneous panel

decision from steering the law in an anomalous direction. Fed. R. App. P.

35(a)(1). Nonprecedential decisions have no precedential force and do not bind

future panels, so they cannot steer the law. See Fed. Cir. Rule 32.1(d).

The other reason that the Federal Rules give for en banc review is that “the

proceeding involves a question of exceptional importance.” Fed. R. App. P.

35(a)(2). As its own prior statements make clear, I/P Engine cannot satisfy this

criterion, either. Specifically, when resisting Defendants’ motion to re-designate

Defendants as Appellants instead of Cross-Appellants, I/P Engine told the Court


6

that Defendants’ appeal does not raise any issues that are “significant, complex,

unique or precedent-setting.” (Dkt. 23 at 6.) I/P Engine further told the Court that

the validity issues in Defendants’ appeal “are typically party- and patent-specific,

and are not likely to impact numerous future cases.” (Id.) Yet I/P Engine now

says that “this appeal requires resolution of . . . legal questions of exceptional

importance.” (Pet., 1.) These inconsistent positions underscore why I/P Engine

has not shown entitlement to the extraordinary remedy of en banc review.

II. I/P ENGINE’S ALLEGATION THAT THE COURT ERRED BY REVIEWING THE “ENTIRE” OBVIOUSNESS QUESTION DE NOVO DOES NOT WARRANT EN BANC REVIEW

Even apart from its non-precedential nature, this Court’s decision does not

warrant en banc review. I/P Engine argues that the “decision controverts precedent

by applying de novo review to the entire obviousness question, without giving

deference to the factual findings below.” (Pet., 4.) But that assertion is baseless.

The Court faithfully applied precedent, in holding that ‘“[w]hether the subject

matter of a patent is obvious is a question of law and is reviewed de novo.’ The

factual findings underlying an obviousness determination include: (1) the scope

and content of the prior art; (2) the differences between the claimed invention and

the prior art; (3) the level of ordinary skill in the art; and (4) any objective indicia

of non-obviousness.” (Slip Op., 8 (citations omitted).) This formulation is

completely consistent with the lengthy summary of case law that I/P Engine recites


7

on pages 6-8 of its Petition. Nowhere did the Court state that it reviewed these

underlying factual questions de novo, and I/P Engine does not show otherwise.

Unable to point to any statement where the Court purported to apply de novo

review to the underlying factual questions, I/P Engine simply misstates the Court’s

opinion. For example, I/P Engine argues that the Court “explicitly rejected”

applying substantial evidence review to the jury’s factual findings when the Court

actually stated the following: “I/P Engine . . . argues that on appeal ‘the only

question is whether substantial evidence supports the jury’s findings.’ There are a

number of reasons why we do not find this reasoning persuasive.” (Pet., 4 (quoting

Slip Op., 16) (I/P Engine’s ellipses).) Thus, the Court simply did not find

“persuasive” I/P Engine’s argument that “the only question is whether substantial

evidence supports the jury’s findings.” (Slip Op., 16.) Instead, the Court held that

whether the jury’s findings are supported by substantial evidence was not the “only

question” in determining obviousness, given the legal nature of the ultimate

obviousness question and the record in this case.

There were good, case-specific reasons for this holding. First, as the Court

noted, some of the jury findings were inconsistent. (Id.) Second, some of the jury

findings supported obviousness, not non-obviousness. (Id.) And third, “while the

jury made underlying determinations as to the differences between the asserted

claims and the prior art, it did not address the ultimate legal conclusion as to

obviousness. Thus, while the jury found that the prior art did not disclose all of the


8

elements of the asserted claims, it never determined whether it would have been

obvious to one skilled in the art to bridge any differences between the prior art and

the claimed invention.” (Id. at 17.) Because the jury did not even reach the issue

of whether the differences between the claims and the art would have been obvious

to overcome, I/P Engine’s argument that “the only question is whether substantial

evidence supports the jury’s findings” was clearly wrong. (Id.)

I/P Engine’s real complaint is not with the Court’s legal framework, but

merely with the outcome of this case. I/P Engine disagrees with the Court’s

holding that the asserted claims are obvious, so it argues that the Court must have

reviewed the jury’s factual findings de novo to reach its holding. But the Court’s

decision neither applied nor depended on de novo review of the jury’s findings.

I/P Engine contends that “[t]he jury found that there were ‘patentable

differences between the scope of the claimed invention and what was known in the

prior art at the time of the claimed invention.’” (Pet., 10 (I/P Engine’s emphasis).)

But this is simply untrue. The jury was presented with a special interrogatory as to

the second Graham factor – what difference if any existed between the claimed

invention and the prior art – and was given two choices. The “what was known in

the prior art” language that I/P Engine points to was in the portion of the special

interrogatory that the jury did not adopt:


9

(A4170.) What the jury checked was explicitly limited to five specific prior art

references―not the far more general “what was known in the prior art” that I/P

Engine represents to the Court. (Id.) That is important because, unlike

anticipation, obviousness depends in part on the general background knowledge of

a person skilled in the art, and the creative inferences such a person would make,

not only on the content of specific prior art references. See, e.g., KSR Int’l Co. v.

Teleflex Inc., 550 U.S. 398, 418 (2007); Slip Op., 14-15.

In ruling that the differences between the claims and the art would have been

obvious to overcome, the Court relied on the admission from the Asserted Patents

that filtering for relevance to the query was a conventional prior art technique.

(Slip Op., 10-11.) This ruling did not contravene any jury findings, because the

jury interrogatories never addressed any admissions from the Asserted Patents

when determining the scope and content of the prior art. In any event, no jury

finding could have erased the admission from the Asserted Patents that filtering for

relevance to the query was a conventional prior art technique. It is well-settled that


10

“[a] statement in a patent that something is in the prior art is binding on the

applicant and patentee for determinations of anticipation and obviousness.”

Constant v. Adv. Micro-Devices, Inc., 848 F.2d 1560, 1570 (Fed. Cir. 1988).

The Court did also cite several passages from the Culliss reference to hold

that Culliss “plainly discloses using combined content and collaborative data when

analyzing information for relevance to a user’s search query.” (Slip Op., 11.) In

that one respect, this Court did reject a jury finding, but it did not do so under an

improper standard of review. Nowhere did the Court state that it applied de novo

review to the jury’s findings on Culliss. Rather, the Court quoted several passages

from Culliss to explain why Culliss “plainly” discloses content analysis and

filtering for relevance to a query. (Slip Op., 11-12.) That is perfectly consistent

with the substantial evidence standard. This Court has held that it is proper to rely

on the plain language of a prior art reference to find that it discloses certain

elements for invalidity, even if a jury held otherwise. See PharmaStem

Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1361 (Fed. Cir. 2007) (granting

JMOL of invalidity, despite contrary jury verdict, where the jury verdict and the

testimony of Plaintiff’s expert “cannot be reconciled with statements made by the

inventors in the joint specification and with the prior art references themselves”).


11

The Court’s finding that Culliss “plainly” discloses the contested elements, despite

the contrary jury finding, is just an application of this settled rule.1

Finally, despite I/P Engine’s references to Judge Chen’s dissent, Judge Chen

never suggested that the Court applied de novo review to the jury’s factual

findings. Instead, Judge Chen noted that “we should tread lightly when reviewing

a legal conclusion – reached by the trial court – that rests upon a jury’s findings of

fact.” (Slip Op., 2 (Chen, J., dissenting).) And Judge Chen stated that, “[b]ased on

the record,” he would not have disturbed the jury’s factual findings on Culliss. (Id.

at 4 n.1.) But that simply expressed Judge Chen’s disagreement with the result the

Court reached in this case, based on this specific factual record.

I/P Engine’s lengthy footnote on pages 10-11, purporting to list “substantial

evidence . . . distinguishing each prior art reference from the asserted claims,”

confirms that I/P Engine’s real quarrel is with the conclusions the Court reached,

1 Equally unavailing is I/P Engine’s complaint that “the panel majority sua

sponte treated Culliss as a stand-alone obviousness reference .” (Pet., 9 n.3.) First, there is no such thing as a “stand-alone” obviousness reference. Rather, “in an obviousness analysis ‘the prior art must be considered as a whole for what it teaches.’” (Slip Op., 9 n.5 (quoting Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1166 (Fed. Cir. 2006) (emphasis in original)).) Second, Defendants asserted Culliss for obviousness, as both the trial transcript (A3164-65) and the jury’s Graham interrogatories (A4170-71) make clear. While Defendants also asserted Culliss for anticipation, “anticipation is the epitome of obviousness.” Johns Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342, 1357 n.21 (Fed. Cir. 1998). So the fact that Defendants argued anticipation based on Culliss does not make it improper for the Court to consider Culliss as part of the overall art for obviousness.


12

given the extensive factual record in the footnote.2 (Pet., n.5.) The Court’s

decision is correct, for the reasons the Court gave. But even if it were not, en banc

review would not be warranted just to revisit the Court’s application of settled

legal principles to the record in this case. As Judge Lourie has stated, not “every

error by a panel is enbancable. A panel is entitled to err without the full court

descending upon it.” Amgen Inc. v. Hoechst Marion Roussel, Inc., 469 F.3d 1039,

1043 (Fed. Cir. 2006) (Lourie, J., concurring in denial of re-hearing en banc).

III. THERE IS NO CONFLICT IN AUTHORITY REGARDING WHO SHOULD APPLY THE COMMON SENSE OF A SKILLED ARTISAN

I/P Engine’s second ground for en banc review is that “the Court needs to

resolve the conflict among this Court’s decisions regarding who should apply the

‘common sense’ of a person having ordinary skill in the art.” (Pet., 4.) I/P Engine

argues that some of this Court’s opinions treat common sense as “part of the legal

2 I/P Engine’s amici also assail the Court’s obviousness conclusion –

arguing, for example, that the Asserted Patents were confirmed in re-examination. (See Amicus Br. of i4i et al., at 8.) But amici do not mention that every re-examination was an ex parte re-examination, in which Defendants had no ability to defend the initial claim rejections against I/P Engine’s subsequent attacks. Nor did the re-examinations (individually or collectively) include the full range of prior art asserted in this litigation and cited in the Court’s opinion.

One of I/P Engine’s amici also lacks credibility before this Court. Professor Dan Ravicher – the author of the Patent Law Professors’ amicus brief – is an active trader in the stock of I/P Engine’s corporate parent, Vringo, Inc. The Appendix to this brief attaches a lengthy email string in which Mr. Ravicher sought consent for an amicus brief, did not deny Defendants’ stated position that he owns stock in Vringo, and threatened to have Defendants’ counsel disbarred or reported to law enforcement for pointing out his ownership in Vringo (ownership that Mr. Ravicher repeatedly disclosed in public online articles, which are also attached).


13

question of obviousness” while others “correctly hold[] that ‘common sense’ is a

factual issue requiring ‘record support showing that this knowledge would reside

in the ordinarily skilled artisan.” (Id. at 14 (emphasis in original).)

This supposed conflict is wholly illusory. Common sense, like obviousness

itself, is informed by the factual record but applied by a court to the legal question

of whether a skilled artisan would have found the claims obvious. For example,

I/P Engine’s cited case of Mintz v. Dietz & Watson, Inc., 679 F.3d 1372, 1377

(Fed. Cir. 2012) states that “invocation of the words ‘common sense’” cannot

invalidate a patent “without any record support showing that this knowledge would

reside in the ordinarily skilled artisan.” The other cases cited by I/P Engine

recognize that courts can use whatever common sense is supported by the record to

find claims obvious, either at summary judgment or JMOL. Even the cases that I/P

Engine puts on the “fact” side of the line, like this Court’s Perfect Web case and

the Supreme Court’s KSR case, involve courts invoking common sense to

invalidate patents at summary judgment. See KSR, 550 U.S. at 407, 427; Perfect

Web Tech., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1325 (Fed. Cir. 2009). So these

cases are perfectly consistent with the rule that courts can invoke a skilled artisan’s

common sense to determine whether claims are obvious as a matter of law, and

that deciding what concepts would have been within a skilled artisan’s common

sense is informed by the factual record at summary judgment or trial.


14

Indeed, KSR refutes I/P Engine’s suggestion that this Court should grant en

banc review because the Supreme Court will otherwise grant certiorari. (Pet., 5-6,

13 n.6.) The Supreme Court has already addressed the standards for determining

obviousness, in KSR itself. KSR clearly holds that a court must determine whether

the differences between the claims and the art would have been obvious for a

skilled artisan to overcome. KSR, 550 U.S. at 407 (“If a court, or patent examiner,

conducts this analysis and concludes the claimed subject matter was obvious, the

claim is invalid under § 103.”) KSR likewise holds that the court may determine

and apply the common sense of a skilled artisan in making this analysis.3 Id. at

418 (“[A] court can take account of the inferences and creative steps that a person

of ordinary skill in the art would employ.”).

The Court here faithfully followed this rule. It cited numerous aspects of the

record, including expert testimony, prior art, and the Asserted Patents themselves,

to determine that a skilled artisan would have found it obvious to filter for

relevance to the query. (Slip Op., 14-15.) So not only does I/P Engine fail to show

any split in authority, it fails to show any legal error in the Court’s decision.4

3 It is telling that I/P Engine does not discuss KSR until the final paragraph

of its Petition. If the Court’s opinion were truly inconsistent with KSR – the leading Supreme Court case on obviousness – one would expect I/P Engine to discuss KSR sooner and in greater depth.

4 I/P Engine suggests a split in authority “as members of this Court have conflicting views on the proper deference to be given to jury findings that underlie obviousness and the appropriateness of appellate fact-finding.” (Pet., 4 (emphasis


15

Contrary to I/P Engine’s position that common sense can only be invoked by

the fact-finder, Judge Chen’s dissent also recognized that a court may invoke

common sense in reviewing obviousness. The dissent simply noted that the court

must “exercise caution” in doing so, and disagreed with the majority about whether

– on this record – it was would have been common sense to use the query for

filtering. (Slip Op., 2 (Chen, J., dissenting ) (“I find that the majority’s use of

common sense to bridge the gap between the prior art and the claims is

unsupported by sufficient evidence and reasoning.”).) Again, such determinations

based on a case-specific factual record are not a proper subject of en banc review.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court

deny I/P Engine’s Petition for Re-Hearing En Banc.

DATED: November 3, 2014

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ David A. Perlson David A. Perlson 50 California Street, 22nd floor San Francisco, CA 94111 Telephone: (415) 875-6344 Facsimile: (415) 875-6700 [email protected] Attorneys for Defendants-Cross Appellants

added).) It supports this argument by contrasting two Federal Circuit opinions with a dissent. (Id. at 4-5.) But en banc review is intended to ensure uniformity of “decisions,” Fed. R. App. P. 35(a)(1), not dissenting views of individual judges.


PROOF OF SERVICE

I hereby certify that on November 3, 2014, I caused to be served

electronically on all counsel of record the foregoing Opposition to I/P Engine’s

Petition for Re-Hearing En Banc, together with the Appendix thereto.

DATED: November 3, 2014 QUINN EMANUEL URQUHART &

SULLIVAN, LLP By /s/ David A. Perlson David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd floor San Francisco, CA 94111 Telephone: (415) 875-6344 Facsimile: (415) 875-6700 [email protected] Attorney for Defendants-Appellants


APPENDIX


1

From: Adam Mossoff [[email protected]]Sent: Friday, October 24, 2014 1:37 PMTo: David Perlson; Daniel B. RavicherCc: Joe.Re; Craig Nard; [email protected]; [email protected];

[email protected]; [email protected]; [email protected]: RE: 13-1307 I/P Engine, Inc. v. AOL Inc.: Request for Consent to File Amicus Brief

In email communications with Craig Nard earlier this month, I specifically stated that I would not be joining the proposed amicus brief drafted by Mr. Ravicher given my substantive disagreements with the content of the brief. I have never had any communication with Mr. Ravicher about this brief. I had assumed my demurer to the invitation to join the brief would have been passed on to Mr. Ravicher by Mr. Nard. It is inappropriate and unprofessional for me to be included in the list of amici in email communications with counsel in this case given my express disavowal of the invitation to join the brief. I am forced to share my earlier email with Nr. Nard so that I know with absolute certainty that I am not being misrepresented in communications or in the final brief. I am traveling at the moment, but I will do so immediately upon my return to the office later today or this evening when I will have access to my email client on my computer. Sincerely, Adam Mossoff Sent from my Samsung Galaxy Note 3 Adam Mossoff Professor of Law Co-Director of Academic Programs & Senior Scholar, Center for the Protection of Intellectual Property George Mason University School of Law

-------- Original message -------- From: David Perlson Date:10/24/2014 1:21 PM (GMT-05:00) To: "Daniel B. Ravicher" Cc: "Joe.Re" ,Craig Nard ,[email protected],[email protected],Adam Mossoff ,[email protected],[email protected],[email protected] Subject: RE: 13-1307 I/P Engine, Inc. v. AOL Inc.: Request for Consent to File Amicus Brief

Mr. Ravicher,

I am cc‐ing the other proposed amici – Professors Nard, Risch, Schwartz, Mossoff, Holbrook, Seymore, and Cotropia. We feel it would best if everyone was on the same page so that there is no misunderstanding. To this end, I have included the full string with our prior communications below so that the other proposed amici can review.

Defendants object to you – Mr. Ravicher – having any role in an amicus brief for this case, due to your history of active trading in the stock of I/P Engine’s corporate parent, Vringo. Thus, Defendants object to you serving as a named amicus, and Defendants also object to you having any role in drafting or otherwise assisting in any amicus brief filed under others’ names. This, of course, extends to any


2

work product that you created in the past. Thus, Defendants would object if you handed a draft brief that you created to Professors Nard, Risch, Schwartz, Mossoff, Holbrook, Seymore, and/or Cotropia for them to file under their names, even if you have no involvement with this brief going forward.

By contrast, if Professors Nard, Risch, Schwartz, Mossoff, Holbrook, Seymore, and/or Cotropia wish to write and file an amicus brief ab initio that has nothing to do with any past or future involvement, support, or work by you, then we have no objection to that.

We note that Federal Circuit Rules 29 and 47.4 require an amicus brief to list all amici, all real parties‐in‐interest besides named amici, and all attorneys who participated in the amicus brief. We expect that any brief filed by any of the above‐mentioned professors would comply with these rules and fairly disclose whether you had any role in the creation of such brief. Similarly, we expect that these professors would not file a brief that you were at all involved with or contributed to and tell the Court that this brief is unopposed, since Defendants do oppose any amicus brief that you had any involvement with or contribution to.

David

‐‐‐‐‐Original Message‐‐‐‐‐ From: [email protected] [mailto:[email protected]] On Behalf Of Daniel B. Ravicher Sent: Thursday, October 23, 2014 1:28 PM To: David Perlson Cc: Joe.Re; Craig Nard Subject: Re: 13‐1307 I/P Engine, Inc. v. AOL Inc.: Request for Consent to File Amicus Brief Do Defendants believe the other seven individuals are not proper amici as well? If I were not a named amici, would Defendants then consent to the brief? I do not believe you've cited any basis to object to the other seven individuals, but I want to make sure I am clear about Defendant's position regarding their propriety. On Thu, Oct 23, 2014 at 4:21 PM, David Perlson <[email protected]> wrote: > For reasons already stated, Defendants do not consent. The disclosure below does not refute our previously stated understanding based on publically available information that you have been an active trader and speculator of Vringo stock and thus not a proper amicus. > > ‐‐‐‐‐Original Message‐‐‐‐‐ > From: [email protected] [mailto:[email protected]] On Behalf Of > Daniel B. Ravicher > Sent: Wednesday, October 22, 2014 2:15 PM > To: David Perlson; Joe.Re > Cc: Craig Nard > Subject: Re: 13‐1307 I/P Engine, Inc. v. AOL Inc.: Request for Consent > to File Amicus Brief > > Messrs. Pearlson and Re, > > Professors Nard, Risch, Schwartz, Mossoff, Holbrook, Seymore and I hereby enlarge our request for consent to include Professor Christopher A. Cotropia of the University of Richmond School of Law. > > Mr. Re, Please let me know at your convenience whether you enlarge your consent to include Professor Cotropia. > > Mr. Perlson, Please let me know at your convenience whether you maintain you opposition to our request for consent. In the hopes that it may help you reconsider your position, please be advised that our motion and brief will make the following disclosure: > > "No party or counsel for a party has authored any portion of this brief, and no one other than amici has made a financial contribution to it. One of amici has a financial interest in Defendant‐Appellant Google. None of amici has a financial interest in Plaintiff‐Cross Appellant I/P Engine." > > As I mentioned previously, Professor Nard and I may continue to enlarge our request for consent to include additional persons. >


3

> Warm regards, > > Daniel B. Ravicher, Esq. > 2000 Ponce De Leon Blvd, Ste 600 > Coral Gables, Florida 33134 > [email protected] 786.505.1205 > > On Thu, Oct 16, 2014 at 1:48 PM, David Perlson <[email protected]> wrote: >> Mr. Ravicher, Google continues to oppose for the reasons already stated. >> >> ‐‐‐‐‐Original Message‐‐‐‐‐ >> From: [email protected] [mailto:[email protected]] On Behalf Of >> Daniel B. Ravicher >> Sent: Thursday, October 16, 2014 5:27 AM >> To: David Perlson; Joe.Re >> Cc: Craig Nard >> Subject: Re: 13‐1307 I/P Engine, Inc. v. AOL Inc.: Request for >> Consent to File Amicus Brief >> >> Messrs. Pearlson and Re, >> >> Professors Nard, Risch, Schwartz, Mossoff and I hereby enlarge our request for consent to include Professors Timothy R. Holbrook of Emory Law and Sean B. Seymore of Vanderbilt Law. >> >> Mr. Re, Please let me know at your convenience whether you enlarge your consent to include Professors Holbrook and Seymore. >> >> Mr. Perlson, Please let me know at your convenience whether you maintain you opposition to our request for consent. >> >> As I mentioned previously, Professor Nard and I may continue to enlarge our request for consent to include additional persons. >> >> Warm regards, >> >> Daniel B. Ravicher, Esq. >> 2000 Ponce De Leon Blvd, Ste 600 >> Coral Gables, Florida 33134 >> [email protected] 786.505.1205 >> >> On Wed, Oct 1, 2014 at 7:15 PM, David Perlson <[email protected]> wrote: >>> Mr. Ravicher, Google continues to oppose for the reasons already stated. >>> >>> ‐‐‐‐‐Original Message‐‐‐‐‐ >>> From: [email protected] [mailto:[email protected]] On Behalf Of >>> Daniel B. Ravicher >>> Sent: Wednesday, October 01, 2014 12:08 PM >>> To: David Perlson; Joe.Re >>> Cc: Craig Nard >>> Subject: Re: 13‐1307 I/P Engine, Inc. v. AOL Inc.: Request for >>> Consent to File Amicus Brief >>> >>> Messrs. Pearlson and Re, >>> >>> Professor Nard and I hereby enlarge our request for consent to include Professors Michael Risch of Villanova School of Law, David Schwartz of the IIT Chicago‐Kent College of Law and Adam Mossoff of George Mason School of Law. >>> >>> Mr. Re, Please let me know at your convenience whether you enlarge your consent to include Professors Risch, Schwartz and Mossoff. >>>


4

>>> Mr. Perlson, Please let me know at your convenience whether you maintain you opposition to our request for consent. >>> >>> As I mentioned previously, Professor Nard and I may continue to enlarge our request for consent to include additional persons. >>> >>> Warm regards, >>> >>> Daniel B. Ravicher, Esq. >>> 2000 Ponce De Leon Blvd, Ste 600 >>> Coral Gables, Florida 33134 >>> [email protected] 786.505.1205 >>> >>> On Tue, Sep 2, 2014 at 2:35 PM, David Perlson <[email protected]> wrote: >>>> Mr. Ravicher, Google continues to oppose for the reasons already stated. >>>> >>>> ‐‐‐‐‐Original Message‐‐‐‐‐ >>>> From: [email protected] [mailto:[email protected]] On Behalf Of >>>> Daniel B. Ravicher >>>> Sent: Tuesday, September 02, 2014 8:39 AM >>>> To: David Perlson; Joe.Re >>>> Cc: Craig Nard >>>> Subject: Re: 13‐1307 I/P Engine, Inc. v. AOL Inc.: Request for >>>> Consent to File Amicus Brief >>>> >>>> Messrs. Perlson and Re: >>>> >>>> I hereby enlarge my request for consent to include, in addition to myself, Professor Craig Nard of Case Western Law School. Professor Nard is a preeminent patent law scholar and expert who clerked for both Judges Nies and Rich on the Federal Circuit. More information about Professor Nard is available from: >>>> http://law.case.edu/OurSchool/FacultyStaff/MeetOurFaculty/FacultyDetail.aspx?id=139. >>>> >>>> Mr. Re, Please let me know at your convenience whether you enlarge your consent to include Professor Nard. >>>> >>>> Mr. Perlson, Please let me know at your convenience whether you maintain you opposition to the request for consent. >>>> >>>> Also, so you are not surprised and so you can discuss it with your clients in consideration of this enlarged request, Professor Nard and I may further enlarge our request to include additional patent law scholars and experts. If and when we wish to further enlarge our request, we will do so immediately so as to not delay your consideration. For now, your response to our joint request for consent would be greatly appreciated. >>>> >>>> Warm regards, >>>> >>>> Daniel B. Ravicher, Esq. >>>> 2000 Ponce De Leon Blvd, Ste 600 >>>> Coral Gables, Florida 33134 >>>> [email protected] 786.505.1205 >>>> >>>> >>>> On Fri, Aug 29, 2014 at 3:58 PM, Daniel B. Ravicher <[email protected]> wrote: >>>>> And yet on July 31, 2013, you did not oppose my request for >>>>> consent to submit an amicus brief at the panel merits stage of this appeal. >>>>> Seven of those articles you cite were published well before that >>>>> date, so what is different now that I published one more article subsequent? >>>>> And how does an article published nearly four months ago by >>>>> someone you allege is a frequent trader provide any basis to >>>>> assert you have knowledge of their current positions, if any. The


5

>>>>> bottom line is you do not deny I am eminently competent to provide >>>>> assistance to the Court, that I am indeed unlike any other patent >>>>> attorney as far as representing the public interest is concerned, >>>>> and that you have not a single shred of evidence of my having any >>>>> financial interest in any party in the case, but yet you still >>>>> oppose my request for consent based on some articles I authored >>>>> months, and even years, ago. That is a frivolous position, utterly baseless on facts or law. >>>>> I will make my motion for leave, you can waste your client's money >>>>> and the court's time submitting an opposition, and then we will >>>>> see what the court decides on the matter. >>>>> >>>>> On Fri, Aug 29, 2014 at 3:39 PM, David Perlson >>>>> <[email protected]> wrote: >>>>>> Mr. Ravicher, as I indicated, our understanding is based on >>>>>> publically available information. At numerous times during the >>>>>> course of this lawsuit, you have publicly disclosed on the >>>>>> Seeking Alpha website that you hold either a long or a short >>>>>> position in Vringo stock. I would refer you to your Seeking >>>>>> Alpha articles of November 7, 2012, December 5, 2012, December >>>>>> 13, 2012, January 3, 2013, January 4, 2013, January 23, 2013, June 17, 2013, and May 7, 2014. We maintain our opposition. >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> From: [email protected] [mailto:[email protected]] On Behalf Of Daniel B. >>>>>> Ravicher >>>>>> Sent: Friday, August 29, 2014 10:53 AM >>>>>> >>>>>> >>>>>> To: David Perlson >>>>>> Cc: Joe.Re >>>>>> Subject: RE: 13‐1307 I/P Engine, Inc. v. AOL Inc.: Request for >>>>>> Consent to File Amicus Brief >>>>>> >>>>>> >>>>>> >>>>>> What financial interest do I have exactly? I'd like to know what >>>>>> accounts of mine you have illegally accessed in order to make >>>>>> such assertions. I will assuredly notify all appropriate law >>>>>> enforcement agencies, in addition to all applicable bar >>>>>> associations. Illegal access to personal financial information is a crime and grounds for disbarment. >>>>>> >>>>>> If, instead, you have absolutely no evidence whatsoever of my >>>>>> having any financial interest in any party in this suit, I trust >>>>>> you will withdraw your frivolous opposition to my appearance as >>>>>> an amici. You can do so now or you can try to explain your position to the court. >>>>>> I'd rather you not waste the Court's time, but that's your choice. >>>>>> >>>>>> If you'd like to discuss on the phone, in the hopes that we can >>>>>> resolve this privately, please just name your time on Tuesday or >>>>>> Wednesday when we can do so. >>>>>> >>>>>> On Aug 29, 2014 1:36 PM, "David Perlson" >>>>>> <[email protected]> >>>>>> wrote: >>>>>> >>>>>> Mr. Ravicher, we do not believe that our opposition to your >>>>>> request based on your financial interest is frivolous, and we


6

>>>>>> maintain our position. If you would like to discuss the matter further by phone we can do so. >>>>>> >>>>>> ‐‐‐‐‐Original Message‐‐‐‐‐ >>>>>> From: [email protected] [mailto:[email protected]] On Behalf Of Daniel B. >>>>>> Ravicher >>>>>> Sent: Thursday, August 28, 2014 6:02 PM >>>>>> To: David Perlson >>>>>> Cc: Joe.Re >>>>>> Subject: Re: 13‐1307 I/P Engine, Inc. v. AOL Inc.: Request for >>>>>> Consent to File Amicus Brief >>>>>> >>>>>> David, >>>>>> >>>>>> Thank you for your reply. >>>>>> >>>>>> My brief will offer assistance to the Court because I am >>>>>> undeniably the world's foremost public interest patent attorney. >>>>>> No other patent attorney on the planet has provided anywhere >>>>>> close to as many hours of pro bono service to the indigent >>>>>> public. No other patent attorney has ever taken a case to the >>>>>> Supreme Court, much less won, on a pro bono matter for >>>>>> economically disadvantaged Americans with no other access to >>>>>> adequate counsel. No other patent attorney has filed as many >>>>>> reexaminations on behalf of the public on a pro bono basis. I >>>>>> have appeared repeatedly before the Federal Circuit, and the >>>>>> Supreme Court, on patent law and policy issues. I have also been >>>>>> called twice as a witness by Congress to testify on patent >>>>>> reform. I am also a law professor that has taught patent law and policy for several years, including teaching U.S. patent law and policy to several international bodies, such as the Chinese SIPO and the United Nations. >>>>>> Indeed, your client Google itself has twice invited me to speak >>>>>> on its campus to provide commentary about patent law and policy. >>>>>> I could continue, but I think I make the point quite clearly that >>>>>> your argument I am unqualified to provide assistance to the >>>>>> Federal Circuit on important issues of patent policy is purely frivolous and, frankly, insulting. >>>>>> >>>>>> My sometimes investing in various securities or derivatives >>>>>> neither provides nor eliminates my ability to offer assistance to the Court. >>>>>> Therefore, that issue is irrelevant. I encourage your clients to >>>>>> reconsider their position on my request, because failing to grant >>>>>> consent will force me to file a motion with the court, burdening >>>>>> it without justification. I would hope that you and I could >>>>>> resolve this so that we don't have to waste the court's time and >>>>>> attention with such a frivolous opposition. If you would like to >>>>>> discuss this with me further, I am happy to speak by phone at your convenience. >>>>>> If I do not receive a reply to this message, I will represent to >>>>>> the Court that your clients have refused to grant consent despite >>>>>> my undeniable qualifications and despite my request that your clients reconsider their position on my request. >>>>>> >>>>>> Warmest regards, >>>>>> ‐‐Dan >>>>>> >>>>>> On Thu, Aug 28, 2014 at 4:44 PM, David Perlson >>>>>> <[email protected]> wrote: >>>>>>> Mr. Ravicher, I apologize for not responding earlier, I was out >>>>>>> of the office last week. >>>>>>> >>>>>>> Defendants do not consent. It is our understanding based on


7

>>>>>>> publically available information that you are an active trader >>>>>>> and speculator of Vringo stock and thus not a proper amicus. >>>>>>> >>>>>>> David >>>>>>> >>>>>>> >>>>>>> >>>>>>> ‐‐‐‐‐Original Message‐‐‐‐‐ >>>>>>> From: [email protected] [mailto:[email protected]] On Behalf >>>>>>> Of Daniel B. Ravicher >>>>>>> Sent: Thursday, August 28, 2014 7:13 AM >>>>>>> To: Joe.Re >>>>>>> Cc: David Perlson >>>>>>> Subject: Re: 13‐1307 I/P Engine, Inc. v. AOL Inc.: Request for >>>>>>> Consent to File Amicus Brief >>>>>>> >>>>>>> Mr. Perlson: >>>>>>> >>>>>>> To follow up on my message last week, while I have received >>>>>>> consent from I/P Engine, I have not received a response from you regarding my request. >>>>>>> Can you please confirm that you have received my request? >>>>>>> Thank you. >>>>>>> >>>>>>> Warm regards, >>>>>>> ‐‐Dan >>>>>>> >>>>>>> On Wed, Aug 20, 2014 at 9:27 PM, Joe.Re <[email protected]> wrote: >>>>>>>> IP Engine hereby consents to an amicus brief. Thank you. >>>>>>>> >>>>>>>> Joseph Re. >>>>>>>> >>>>>>>>> On Aug 20, 2014, at 6:52 AM, "Daniel B. Ravicher" >>>>>>>>> <[email protected]> >>>>>>>>> wrote: >>>>>>>>> >>>>>>>>> Dear Messrs. Perlson and Re: >>>>>>>>> >>>>>>>>> Pursuant to Fed. R. App. P. 29, I write to request consent to >>>>>>>>> my filing an amicus brief with the Federal Circuit in 13‐1307 >>>>>>>>> I/P Engine, Inc. v. AOL Inc. on behalf of >>>>>>>>> Plaintiff/Cross‐Appellant, I/P Engine, Inc. upon any petition >>>>>>>>> for rehearing or rehearing en banc that may be filed. >>>>>>>>> >>>>>>>>> Warm regards, >>>>>>>>> >>>>>>>>> Daniel B. Ravicher, Esq. >>>>>>>>> Ravicher Law Firm >>>>>>>>> 2000 Ponce De Leon Blvd, Ste 600 Coral Gables, Florida 33134 >>>>>>>>> (786) 505‐1205 | [email protected]


I have written previously (here and here) about the patent infringement suit brought by Vringo

(NASDAQ:VRNG) against Google (NASDAQ:GOOG), which appears to be highly material to Vringo's

valuation. After the jury found Vringo's patents valid and infringed, and awarded Vringo $31M in damages, both

sides proceeded to file several post-trial motions. Those motions are not yet fully briefed, and so I haven't drawn

any conclusions on their respective merits.

However, Google has asked the judge to postpone ruling on one of the motions filed by Vringo requesting the

implementation of an ongoing royalty Google must pay Vringo for continued infringement of the patents. Not

only do I find such a request abnormal, as judges frequently prefer to address all post-trial motions at once, rather

Seeking Alpha

Home |

My Portfolio |

Breaking News |

Latest Articles |

StockTalk |

ALERTS |

PRO

|

1

User 121...

Subscribe to our daily SA Tech Stock Report email which covers the latest tech stories.x

Recommended for you:

-

Daniel B. Ravicher, Ravicher.com (340 clicks)

Healthcare, tech, patents, litigation

Profile| Send Message|

Follow (581 followers)

Google Flip Flops, Concedes Vringo Entitled ToOngoing Royalties

Jan. 3, 2013 10:30 AM ET | 191 comments | About: Vringo, Inc. (VRNG), GOOG by: Daniel B. Ravicher

Disclosure: I am long VRNG. (More...)

Google Flip Flops, Concedes Vringo Entitled To Ongoing Royalties - Vr... http://seekingalpha.com/article/1092911-google-flip-flops-concedes-vrin...

1 of 12 9/1/2014 9:41 AM


than in series, Google made a specific argument in its December 21 request for postponement that caught me

completely off guard. Specifically, Google said,

... allowing the Court to first rule on the other pending post-trial motions would give the parties an

opportunity to negotiate post-judgment royalties themselves.

My jaw literally hit the floor when I saw that in Google's papers, as I believed they were not at all willing to

consider paying any ongoing royalties to Vringo whatsoever. Throughout the litigation, Google has consistently

argued that even if Vringo's patents are valid and infringed, Vringo is not entitled to royalties, but instead is only

entitled to a single lump-sum one-time payment for a total license to the patents.

To be sure, in its post-trial motion for Judgment as a Matter of Law on Damages filed December 18, Google

argued,

In this case, none of the evidence relied on by I/P Engine or Dr. Becker to justify a running royalty

was admissible or reliable. ...

By contrast, Defendants introduced evidence that the hypothetical negotiation would have resulted in

a lump-sum.

It's absolutely shocking to me to see Google so severely undercut that argument just three days later in its request

to postpone Vringo's post-trial motion for ongoing royalties by saying,

[T]ime would also provide the parties with an opportunity to negotiate an agreeable post-judgment

reasonable royalty, an approach strongly endorsed by the Federal Circuit. See Telecordia Tech, Inc. v.

Cisco Sys., Inc., 612 F.3d 1365, 1378 (Fed. Cir. 2010) ("If the district court determines that a

permanent injunction is not warranted, the district court may, and is encouraged, to allow the parties

to negotiate a license . . . . The district court may step in to assess a reasonably royalty should the

parties fail to come to an agreement.").

This statement by Google not only contradicts their previous position that Vringo is not entitled to any royalties

whatsoever, but it also concedes that a reasonable royalty for ongoing infringement is something the Court of

Appeals has "strongly endorsed" judges assessing if the parties can't negotiate such terms themselves.

I don't see how Google can continue to argue Vringo is not entitled to an ongoing royalty if it is now saying it

wants time to negotiate an ongoing royalty with Vringo privately and, if the parties are unable to reach a deal, the

judge should step in and assess an ongoing royalty himself. To do so, as it appears Google intends to do, in my

opinion seriously erodes Google's credibility on the issue and virtually admits Vringo is indeed entitled to an

ongoing royalty and not just a lump-sum payment. This is a substantial concession on Google's part and I do not

see the strategic sense in effectively giving up on the argument that Vringo is only entitled to a lump sum.

On New Year's Eve, Vringo filed its opposition to Google's postponement request, saying in pertinent part,

Defendants' claim that a delay is necessary for the parties to negotiate post-judgment royalties

themselves is disingenuous. Defendants have not contacted I/P Engine at all since the jury's verdict to

convene any such negotiations. While I/P Engine remains available - no matter the briefing schedule

- to negotiate a resolution to this litigation in good faith, there is no justification to delay this Court's

determination of what is inevitable (the awarding of post-judgment royalties based on an in-hand

verdict). Such a delay would likely achieve the opposite, allowing Defendants to postpone any

meaningful discussions given that there are no imminent rulings or deadlines looming over them.


2 of 12 9/1/2014 9:41 AM


Vringo's argument is extremely persuasive to me. If it is true that Google has not attempted to initiate any

negotiations with Vringo regarding a license with ongoing royalties instead of a lump sum payment, then

Google's argument that it needs time to do so as an excuse to delay the court's consideration of imposing such

ongoing royalties to Vringo seems extremely disingenuous to me. I expect the judge will deny Google's request to

postpone the resolution of Vringo's post-trial motion for ongoing royalties and while I won't draw a final

conclusion until I see all the briefing, I think Google's argument that Vringo is not entitled to ongoing royalties is

very unlikely to prevail.

Additional disclosure: This content was originally issued as a Ravicher Report on January 3, 2013. It is now

being made available for free to the public for the first time here. I was previously short VRNG, as disclosed in

my Nov 1, Nov 7, Dec 5, Dec 12 and Dec 13 articles. My articles of Oct 11, Oct 17, Oct 22 and Oct 26 correctly

disclosed I had no position in VRNG. In light of the issues addressed in this article and the fact that VRNG

recently fell below $3, I closed my short position and initiated a long position. VRNG is, in my opinion, highly

volatile, as is the litigation process in which it is involved. Therefore, I may change my position in VRNG at any

moment for any reason. I have never directly held shares in GOOG, although I am sure I have and do effectively

own such shares through mutual funds and ETF's. Neither I nor any entity that I direct (i.e. I am a member of the

Board of Directors) has any business relationship with VRNG, GOOG or any other party involved in this matter. I

am Legal Director of the Software Freedom Law Center, a non profit that has in the past received support from

GOOG, but I have been on an unpaid leave of absence from SFLC since August 2011. A client I have represented

in litigation in the past, the Software Freedom Conservancy, may have received or be receiving support from

GOOG, but no such support has ever been used to compensate me for my services to the client, as I provide all

my services to that client either pro bono or on contingency. I have in the past been invited by GOOG to give two

public speeches on issues relating to patent law. Those two speeches are available through YouTube by searching

my name. I was not compensated by GOOG or any other party for those speeches, nor were any of my travel

expenses even reimbursed. I have a couple friends who work at GOOG. Some of them are patent attorneys, but

I've never talked to them or any of my other friends at GOOG about VRNG. I use GOOG products, such as

Gmail, Google Search, Android and Chrome.

LATEST ARTICLES ON YOUR INTERESTS:

The Irony Of Bank Of America's Hustle Case

BAC • Today, 8:43 AM • Orange Peel Investments • 4 Comments

Retirement Strategy: The Buy The Dips Portfolio Continues To Surge

AAPL • Today, 8:00 AM • Regarded Solutions • 8 Comments

United Technologies: Heading Towards A Secure And Brighter Future

UTX • Today, 7:14 AM • Balanced Investing • Comment!

Update: Another Reason To Like The Burger King Deal

BKW • Today, 3:44 AM • Orange Peel Investments • 2 Comments


3 of 12 9/1/2014 9:41 AM


I have followed the Vringo (NASDAQ:VRNG) vs. Google (NASDAQ:GOOG) patent infringement trial (actually

called I/P Engine v AOL et al.) extensively. Previously I provided a preview of the trial, a summary of the

opening day of the trial, which I attended in person, updates on the other days of the trial (here, here and here),

my prediction for what the jury would decide, a discussion of risks to the jury's verdict, and my opinion that

Google flip flopped on the issue of whether the court should award Vringo an ongoing royalty. At various points I

have been long VRNG, short VRNG, and had no position in VRNG. I am a trader. I do not fall in love or hate

with a stock. I buy when I think it is underpriced and sell when I think it is overpriced. I indeed have done this

within a day when the stock price moved dramatically.

As of now, there are two open threads in the case. First, both sides have filed appeals with the Court of Appeals

Seeking Alpha

Home |

My Portfolio |

Breaking News |

Latest Articles |

StockTalk |

ALERTS |

PRO

|

1

User 121...

Subscribe to our daily SA Tech Stock Report email which covers the latest tech stories.x

Recommended for you:

-

Daniel B. Ravicher, Ravicher.com (340 clicks)

Healthcare, tech, patents, litigation

Profile| Send Message|


Vringo Vs. Google: Ongoing Royalty Prediction

Jun. 17, 2013 10:54 AM ET | 56 comments | About: Vringo, Inc. (VRNG), Includes: GOOG by: Daniel B.

Ravicher


Vringo Vs. Google: Ongoing Royalty Prediction - Vringo, Inc. (NASD... http://seekingalpha.com/article/1505402-vringo-vs-google-ongoing-royal...

1 of 14 9/1/2014 9:44 AM


for the Federal Circuit, which is the exclusive Court of Appeals for patent cases. Vringo is appealing the District

Court judge's decisions to not allow a new trial on damages and to limit Vringo's damages period under laches.

Google is appealing the judge's claim construction, certain evidentiary rulings, and refusal to overturn the jury's

verdict of infringement, validity, and damages. The opening appeal brief is due from Google on July 22, and then

there will be a couple of rounds of briefs, followed by an oral argument before any decision is issued. In short,

that process is still in its early stages.

The second open thread is the lone remaining issue for the District Court judge, Judge Raymond Jackson, to

decide, which is what, if any, royalty to require Google to pay for continuing to infringe Vringo's patents after the

jury's verdict. That issue was fully briefed by the parties as of May 24, and the judge has not indicated he wants to

have a hearing on it. So, he could issue his decision any day.

Parties' Positions: I reviewed the briefs submitted by the parties and have come to a conclusion regarding how I

predict Judge Jackson will rule on the issue. Before I provide my prediction, I first want to summarize the parties'

positions.

Vringo argues in its briefs (here and here) that Judge Jackson should:

[E]nter an Order requiring that, for the period from November 20, 2012 through April 4, 2016,

Defendants pay I/P Engine ongoing royalties computed on a base of 20.9% of Defendants' U.S.

AdWords revenues, at a running royalty rate of 7% of that base for Defendants' continued willful

infringement.

FYI, the November 20, 2012, date is the date Judge Jackson entered Judgment on Vringo's behalf after the jury

verdict, which was issued on November 7. The April 4, 2016 date is the date Vringo's patents will expire.

Google, on the other hand, argues in its brief that Judge Jackson should deny Vringo's request for any

post-judgment royalty in its entirety. Google makes this argument because it says it no longer infringes Vringo's

patents, due to a change it says it recently made to its systems, and also because Vringo is only entitled to a lump

sum payment, which is covered by the jury's damages award for past infringement.

ActiveVideo: In forming my opinion, I also reviewed his ruling on post-verdict royalty in another case he presided

over called ActiveVideo v Verizon. As an aside, in that case Judge Jackson noted, "[t]he parties have provided the

Court vastly dissimilar submissions regarding the appropriate royalty rate." So, the vast difference between

Vringo's and Google's arguments is not unusual for the judge.

In the ActiveVideo case, the jury awarded the patent holder a royalty for past infringement of $1.13 per subscriber,

while Judge Jackson awarded the patent holder a post-verdict ongoing royalty of $2.74 per subscriber, more than

double the jury verdict. The patentee had proposed $3.40 per subscriber, a tripling of the jury's verdict, while the

infringer had proposed only $0.17 per subscriber. In his analysis coming to the $2.74 figure, Judge Jackson said:

[I]t would have been reasonable for the parties to make an agreement whereby Verizon would receive

60% of the profits and ActiveVideo would receive 40% of the profits from the FiOS TV system.

I conclude from this that Judge Jackson is not uncomfortable with awarding a patentee a very large percentage of

the profits derived by an infringer from continued infringement. Nor is Judge Jackson uncomfortable with

awarding post-verdict royalties that are more than double what the jury awarded for past damages. Further, Judge

Jackson can feel confident in issuing such a decision because the Court of Appeals blessed his ActiveVideo

analysis, saying "we see no error in its post-verdict royalty calculation."


2 of 14 9/1/2014 9:44 AM


My Opinion: I believe it is more likely than not that the Judge will grant Vringo an ongoing royalty against

Google's continued patent infringement and that he will set a royalty rate of between 5 and 6% applied against a

base of 20.9% of Google's AdWords revenues. I explain how I came to this opinion below.

First, Google has, for better or worse, given the judge an all or nothing proposition, which is exactly what they

did at trial, where Google presented no evidence of a different royalty base or royalty rate than what Vringo

proposed. Both at trial and again now in the post-trial royalty briefing, Google has maintained its position that the

proper award is a one-time lump-sum amount. That is a very bold, but very dangerous litigation strategy, because

the fact that it didn't work at trial means it is unlikely the judge will adopt it in the post-trial motion. As such, I

expect the judge will reject completely Google's argument that Vringo is not entitled to an ongoing royalty. (I

wrote previously about Google flip-flopping on this issue, which it seems to have done now yet again. If Judge

Jackson is anything like me, at this point he likely gives Google very little credibility on the issue.)

Royalty Rate: The next question is what royalty will he award. This involves two parts. The judge must

determine a royalty rate and a royalty base. The royalty rate is the percentage to be paid to Vringo and the royalty

base is the revenues of Google against which the royalty rate is to be applied. Vringo argues the rate should be 7%

and the base should be 20.9% of Google's U.S. AdWords revenues. Google, after arguing there should be no

royalty whatsoever, argues the rate, if any, should be less than 3.5% and the base should be no greater than 2.8%.

It is my opinion that Vringo is correct when it points out in its briefs that the case law supports post-judgment

royalties being higher than the royalty awarded at trial both because the patent holder is in a stronger bargaining

position and because the infringer is now fairly considered to be willfully infringing. In this case, the jury found

that an appropriate royalty rate for past damages would have been 3.5%. Thus, the royalty rate I expect the judge

to award for post-verdict infringement will be higher than that.

Vringo's argument that it should be double (7%) seems reasonable and well within the judge's discretion to award,

especially given his decision in ActiveVideo. However, because Google has appealed the issues of infringement

and validity, I do not think it is appropriate to over penalize them for willfulness, at least not unless and until the

Court of Appeals affirms that they are infringing valid patents. For that reason, I expect the Judge will award a

royalty rate that is higher than the 3.5% found by the jury, but not as high as 7% as Vringo proposes. I expect he

will award a royalty rate of between 5 and 6%. Google's argument that it should be less than 3.5% is a non-starter.

Royalty Base: Once the judge determines the proper royalty rate, he must also determine the proper royalty base

against which to apply that rate. On this issue, the jury was not asked to provide its determination, so it's uncertain

what they used to calculate the damages awarded to Vringo at trial. Google argues the royalty base must be much

lower than 20.9%, because the total jury verdict against Google of approximately $16M does not work out

mathematically. Specifically, Google suggests that if you take the $16M total amount of damages awarded against

them and apply a 3.5% royalty rate to Google's U.S. AdWords revenues for the relevant pre-verdict time frame,

the algebra indicates the jury applied a 3.5% royalty rate against only 2.8% of Google's U.S. AdWords revenues,

not the 20.9% royalty base Vringo argued to the jury during trial and now argues to Judge Jackson in the ongoing

royalty motion.

There is no conclusive proof of what the jury believed was an appropriate royalty base. Unlike the royalty rate

they were expressly asked to determine, the jury was not asked to say in its verdict what royalty base it found was

appropriate. Therefore, it isn't possible to know for sure whether the jury rejected Vringo's 20.9% royalty base

argument or not. Given the options of a 20.9% royalty base, which Vringo presented at trial, and a 2.8% royalty

base, which Google argues can be inferred from the jury verdict, but which it did not argue at trial, it is my

opinion that the judge will adopt the 20.9% royalty base of U.S. AdWords revenues. This is because it's the better

choice between the two being presented to him, and there's no evidence for him to rely on to say some other


3 of 14 9/1/2014 9:44 AM


royalty base is appropriate. He'd literally have to make one up out of thin air and I don't see him doing that.

Google's Purported Design Around: It is important to note that Google told the judge in its brief that it has

implemented a change to its systems such that it is no longer infringing Vringo's patents. If this is true, then no

matter what ongoing royalty the judge imposes, Google will not have to pay any money to Vringo as of the date

Google stops (or stopped) infringing Vringo's patents.

However, in my opinion, Vringo is correct when it argues that the currently pending motion for an ongoing

royalty is not the appropriate time to deal with that issue. If/when the issue of Google's purported non-infringing

alternative is before the court, I hope to have time to analyze it then. For now, I (and I assume Judge Jackson as

well) will withhold having an opinion on that issue, while keeping in mind that Google argued its previous system

also did not infringe the patents (and it maintains that argument in its appeal), and yet the jury disagreed.

Timing of Decision: Lastly, on when we can expect a decision from Judge Jackson, as I said above, the ongoing

royalty motion was fully briefed as of May 24. I generally expect district court judges to rule on motions within

two months, and Judge Jackson does not appear to me to be outside of the normal range. In fact, in the

ActiveVideo case, the judge made his ruling just eight days after the ongoing royalty issue was fully briefed.

In this case, Judge Jackson ruled on four other post-verdict motions made by the parties in little over six weeks.

Therefore, I fully expect Judge Jackson will rule on the ongoing royalty motion anytime between now and mid

July at the latest. I indeed wouldn't be surprised if he ruled by the end of June.

Risk Factor: I am human, and therefore might be completely wrong with my opinions and predictions.

Therefore, before making any investment decision based on what I have written here, please spend some time

evaluating the situation on your own, and also please evaluate my credibility. Without question, I can be and have

been wrong many times. For example, in January 2011, I predicted Rambus (RMBS) would win two appeals in its

patent cases, but that didn't exactly happen. I was long RMBS based on my prediction, but the stock went down

more than 20% when things didn't go as I predicted.

Even in this case, I've made mistakes. For example, in my December 13 article, I said:

The judge will decide whether the claims are invalid for obviousness, although the jury did find

several preliminary factual questions for the judge to consider on that issue in Vringo's favor... Vringo

must have the judge rule the patents are not obvious.

However, the judge had already ruled on the issue of obviousness in Vringo's favor. I unfortunately missed that in

my review of the docket, which was a mistake, and I immediately apologized in the comments of the article once

it was brought to my attention. I had, however, assumed in the article that the judge would rule in Vringo's favor

on obviousness, so even if I had known about the judge's decision, it wouldn't have materially changed the

opinions I expressed in that article. But, regardless, it was a mistake, and I could very well make such mistakes

again. I am human. This is why you must review what I've said for yourself to make sure I haven't made a

mistake.

As another example of my being incorrect, in January I wrote an article saying Google's request to postpone

Vringo's ongoing royalty motion had been ignored, which was disproven a few hours later when the judge granted

the motion, quite to my surprise and embarrassment.

Warning: Finally, even though I firmly believe in what I've said here, I also strongly discourage anyone from

investing in VRNG, or any other volatile stock, with money they can't afford to lose. I really do not want the guilt

of people losing their savings because of my prediction, since it is extremely possible that I could be completely


4 of 14 9/1/2014 9:44 AM


wrong. I strongly encourage investors to consult with their own patent attorney on these issues to get a second

(and possibly different) opinion.

Additional disclosure: This content was originally published as a Ravicher Report on June 13, 2013. It is now

being made available for free to the public for the first time here. While I am long VRNG as of the submission of

this article for publication to the Seeking Alpha editors, VRNG is, in my opinion, highly volatile, as is the

litigation process in which it is involved, and therefore I may change my position in VRNG at any moment for

any reason or no reason at all. I have been asked by the Seeking Alpha editors to state the price at which I would

change my position in VRNG. At the precise moment that I am submitting this article to the Seeking Alpha

editors I would be willing to close my long position in VRNG if it reached $3.50-3.75. In stating these prices, I

am not providing any investment advice or making any buy or sell recommendation. I am merely saying what

prices I would at the moment of submission of this article I would be willing to close my long position. My

opinion on this may very well change, rapidly. Also, when asked, I have given my opinions about VRNG to

private parties, some of whom had positions in VRNG at the time I gave my opinions to them. Sometimes I gave

my opinions in exchange for a fee and I may very well continue to do so.




Retirement Strategy: The Buy The Dips Portfolio Continues To Surge

AAPL • Today, 8:00 AM • Regarded Solutions • 8 Comments

United Technologies: Heading Towards A Secure And Brighter Future

UTX • Today, 7:14 AM • Balanced Investing • Comment!

Update: Another Reason To Like The Burger King Deal

BKW • Today, 3:44 AM • Orange Peel Investments • 2 Comments

Google's Traffic Acquisition Costs Could Soon Stabilize

GOOG • Yesterday, 9:15 AM • Joseph Gacinga • 4 Comments

More Latest Articles »

Author Alerts Followers

Daniel B. Ravicher,

Loading...

Authors:

+Add Authors

Impressed by Daniel B. Ravicher?

Add this author to see more of

their analysis.


5 of 14 9/1/2014 9:44 AM


Summary

Oral argument in the Vringo vs. Google patent infringement appeal took place Tuesday.Google appealed several issues, and Vringo cross-appealed one.I expect the lower court judgment will be completely affirmed.

On Tuesday, the Court of Appeals for the Federal Circuit heard oral argument in an appeal of the patent infringement case I/P Engine vs. AOL, better known as Vringo (NASDAQ:VRNG) vs. Google (NASDAQ:GOOG). Here Iprovide a brief overview of the case, give my thoughts on Tuesday's oral argument, and project what I expect the Court of Appeals will decide in the appeal.

Overview of Case

In November 2012, a jury in Virginia found that Google infringed Vringo's 6,314,420 and 6,775,664 patents, and awarded it $31 million in damages. The judge overseeing the case refused to overturn the jury's verdict, and orderedGoogle to pay an additional $17 million for interest and damages accruing since the verdict. The district court judge has also since ordered Google to pay an ongoing royalty for continued infringement of Vringo's patents of 6.5%of a 20.9% royalty base on U.S. AdWords revenues (i.e. 1.36% of Google's AdWords revenues).

Google has appealed several issues to the Court of Appeals for the Federal Circuit in DC, which is the exclusive Court of Appeals for patent cases. The first appeal filed by Google raises the issues decided by the jury and not

overturned by the district court judge. A second, more recent, appeal filed by Google raises the issues of additional damages and ongoing royalty.

In the first appeal, Google raised three main issues. First, Google appealed the finding of infringement, arguing that its accused systems do not perform all of the required steps of the asserted patents. Second, Google appealed thefinding that the patents are valid, in particular arguing that the patents are invalid for being obvious in light of the prior art. Lastly, Google appealed the award of $30M in damages to Vringo, arguing that the evidence did notsupport such an amount. Vringo cross-appealed the issue of laches, which the district court judge held limited the amount of damages Vringo was entitled to receive from Google.

Briefing in the first appeal was submitted late last year, and oral argument took place on Tuesday before Circuit Judges Wallach, Mayer, and Chen. An mp3 of the oral argument is available from the Federal Circuit's website. I didnot attend the oral argument in person, but I reviewed the submitted briefs and listened to the mp3 recording.

Infringement

As the appellant, Google went first. Google began by discussing its non-infringement argument based on the requirement that the patents "combine" collaborative feedback with content filtering. The Court of Appeals pointed out,however, that Google had not appealed the district court's construction of the word "combine", and thus, Google must show there was no substantial evidence in the record on which the jury could have ruled in Vringo's favor onthe issue. Google resorted to rearguing the evidence, which is not sufficient to carry its burden. It must instead show that no reasonably jury could have ruled for Vringo on the issue. Vringo's attorney pointed out how experttestimony supported the jury's verdict. I do not think Google has overcome its very high hurdle for reversal on this issue. Thus, I expect the Court of Appeals will affirm the finding of infringement.

Validity

The Court of Appeals seemed much more interested in the second issue Google appealed, validity, and specifically the issue of obviousness. Indeed, one of the Court of Appeals judges actually interrupted Google's attorney whilehe was discussing infringement and asked him to move on to discuss obviousness. The Court of Appeals was confused by the jury's specific finding that there had been both copying of the patented invention and independentinvention of the accused systems by Google. Vringo's attorney conceded this inconsistency, but argued it was insufficient to reverse the finding that the patents were valid, because the jury found that the prior art did not teach all

of the elements of the patented inventions, and those two issues (copying and independent invention) are merely "secondary considerations" that can help tilt an obviousness finding if, and only if, all of the elements in a patentedinvention are found in the prior art, leaving one to ask whether it would have been obvious to combine the prior art's teachings to achieve the patented invention.

Indeed, if one looks at the jury verdict form specifically, the jury did not make inconsistent findings on these two questions for the '420 patent. They only did it for the '664 patent. There's also no dispute on other secondaryconsiderations, such as commercial success, long-felt need, and unexpected results, all of which the jury found supported a conclusion that the patents were not obvious. In my opinion, even if the Court of Appeals were to assumethere was no copying and there was independent invention, the other secondary considerations weigh in favor of nonobviousness, and there is still no evidence to fill the gap between the prior art's combined teachings and thepatents in the first place. Thus, I do not believe the Court of Appeals will find that Google has proven with clear and convincing evidence (the standard it must satisfy) that Vringo's patents are obvious. Indeed, towards the end of

the oral argument, one of the Court of Appeals judges pointed out how the U.S. Patent & Trademark Office, in evaluating reexaminations of Vringo's patents, had itself found them not to be obvious in light of similar prior art.

One of the Court of Appeals judges raised the issue of 101, which deals with patent-eligible subject matter. Indeed, the Supreme Court is currently considering a case on the issue of whether business methods can be patented(much like the Bilski case from a couple years ago). Thus, the question may have been that particular judge's way of asking Google to explain whether it thought Vringo's patents violated 101. Another Court of Appeals judgepointed out with his questioning how the only patents found invalid under 101 by the Court of Appeals were on business processes like hedging risk, and regardless, Google had not raised the issue below or noted it as an issue onappeal (something Google said was a calculated litigation decision). Thus, I do not expect the Court of Appeals will even address the 101 issue, since Google did not raise it itself, and even if the Court of Appeals does raise theissue on its own, I doubt they will find Vringo's patents invalid under it.

Damages / Laches

There was no discussion of the damages issue appealed by Google, and very little mention of the laches issue appealed by Vringo during the oral argument. I took this to mean those issues were of no interest to the judges, andthus, are likely to be affirmed, because it is very rare that the Court of Appeals will reverse a lower court decision on an issue without asking at least some questions about it during oral argument.

Expected Decision

Seeking Alpha

Home |My Portfolio |Breaking News |Latest Articles |StockTalk |ALERTS |

PRO|1User 121...

Subscribe to our daily SA Tech Stock Report email which covers the latest tech stories.xRecommended for you:

-

Daniel B. Ravicher, Ravicher.com (340 clicks)Healthcare, tech, patents, litigationProfile| Send Message|


Analysis Of Oral Argument In Vringo Vs. Google Patent Infringement Appeal

May. 7, 2014 12:39 PM ET | 104 comments | About: Vringo, Inc. (VRNG), GOOG, GOOGL by: Daniel B. Ravicher


Analysis Of Oral Argument In Vringo Vs. Google Patent Infringement ... http://seekingalpha.com/article/2198683-analysis-of-oral-argument-in-vr...

1 of 6 9/1/2014 9:45 AM


As I say above, I expect the Court of Appeals will affirm the district court decision in all respects. Thus, I expect Google will lose all of the issues it has appealed in this first appeal and Vringo will lose on the issue that it hasappealed. As for timing, the Court of Appeals could issue a Rule 36 Judgment, which is a simple one-page 100% affirmance, within days (usually 3-4 court days from oral argument). If, instead, the Court of Appeals decides towrite a full written opinion, that takes on average 2-4 months, although it could take longer, depending upon schedules of the judges. Once this appeal is decided, the Court of Appeals will consider Google's more recent appeal ofthe additional damages and ongoing royalty decision by the district court judge. I plan to follow that appeal as well, as it progresses.

Additional disclosure: I may change my positions at any time for any reason, or no reason at all.




Retirement Strategy: The Buy The Dips Portfolio Continues To SurgeAAPL • Today, 8:00 AM • Regarded Solutions • 8 Comments

United Technologies: Heading Towards A Secure And Brighter FutureUTX • Today, 7:14 AM • Balanced Investing • Comment!

Update: Another Reason To Like The Burger King DealBKW • Today, 3:44 AM • Orange Peel Investments • 2 Comments

Google's Traffic Acquisition Costs Could Soon Stabilize

GOOG • Yesterday, 9:15 AM • Joseph Gacinga • 4 Comments

More Latest Articles »

Author Alerts Followers

Daniel B. Ravicher,

Loading...Authors:+Add Authors

Impressed by Daniel B. Ravicher?

Add this author to see more oftheir analysis.

X

Symbol Alerts Price Chg % Chg

BA 126.80 -0.31 -0.24

BAC 16.09 +0.08 +0.50

C 51.65 +0.26 +0.51

DELL 13.87 +0.04 +0.29

Loading...

Symbols:+Add StocksShare this article with a colleague

Tweet

0

More articles by Daniel B. Ravicher »

Celgene Asserts More Revlimid Patents, Seeks New Ones To 2031 Tue, May 20

Thoughts On The Celgene Revlimid Markman Hearing Fri, May 16Addressing Revlimid Patents Questions From Celgene's Q1 2014 Call Mon, Apr 28Day 5 Of The Juniper Vs. Palo Alto Patent Trial Wed, Mar 5

Latest on VRNG

Midday Gainers / Losers Tue, Aug 26Midday Gainers / Losers Wed, Aug 20Vringo to seek en banc review of Google ruling Wed, Aug 20

Midday Gainers / Losers Tue, Aug 19Vringo bounces as insiders buy following Google ruling Mon, Aug 18The Opinion That Brought Down Vringo Mon, Aug 18Vringo Rated As Rotten: The Company Shows Why You Don't Speculate On "Patent Trolls" Sun, Aug 17Vringo: Next Steps After A Disappointing Decision Versus Google Sat, Aug 16Midday Gainers / Losers Fri, Aug 15

Vringo -71.4% after resuming trading Fri, Aug 15

Comments (104)

Track new comments

Register or Login to rate comments »

Alessio2, contributorComments (18) | + Follow Following - Unfollow | Send Message

Thank you for your update.7 May, 12:49 PMReply! Report AbuseLike4

LikeLike

ShareShare

About this article

Emailed to: 9,418 people who get VRNG real-time alerts and 193,918 people who get SA Tech Stock Report daily.

Author payment: $35 + $0.01/page view. Authors of PRO articles receive a minimum guaranteed payment of $150-500.Become a contributor »Tagged: TechnologyProblem with this article? Please tell us. Disagree with this article? Submit your own.

Analysis Of Oral Argument In Vringo Vs. Google Patent Infringement ... http://seekingalpha.com/article/2198683-analysis-of-oral-argument-in-vr...

2 of 6 9/1/2014 9:45 AM


Google response

Documents

Transcript of Google response