Reading Google's appeal sounds like they expect to lose so they are making a case for lower supplemental damages.
Summary of Argument
I. Even if the jury verdict is affirmed in Appeal No. 2013-1313, the district
court's supplemental damages award should be reversed because it is greatly
disproportionate to the jury's damages award. The district court acknowledged that
supplemental damages must be calculated consistently with the jury's damages award.
Yet the district court awarded supplemental damages on a per-month basis that are
seven times greater than the jury's post-Complaint damages award against Google.
The disproportionate supplemental damages award should be reversed as to both
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Google and the non-Google Defendants, given that the non-Google Defendants were
accused of infringement solely through their use of Google's systems and Plaintiff
never presented a post-Complaint damages number against the non-Google
Defendants at all.
II. The district court's post-judgment royalties award should be reversed
because it applied a royalty base that was greatly disproportionate to the jury's
damages award, a royalty rate that did not account for the effect of changed
circumstances, and an erroneous willfulness enhancement. The changed
circumstances actually favored Defendants, by rendering Plaintiff's 2005-era
"comparable" licenses much less temporally relevant and rendering the 2011 purchase
of the Asserted Patents for $3.2 million far more temporally relevant. The district
court, however, ignored these facts and erroneously found that changed circumstances
required a dramatic increase in the royalty rate. The district court's willfulness
enhancement was equally erroneous, especially given Defendants' strong liability
defenses (still pending before this Court) and the fact that Plaintiff presented no
evidence of the subjective mindset of Defendants as required for willfulness.
III. The district court also made clearly erroneous findings to continue
imposing post-judgment royalties long after those royalties should have ceased. These
further royalties are inappropriate because New AdWords eliminates all three steps
accused of meeting the "filtering" limitations at trial. Far more than a mere
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"colorable" difference, these significant changes were the result of extensive
engineering effort to eliminate the need for what Plaintiff stressed at trial was the key
purpose of the accused filtering steps—solving the "10 Billion Ads" problem.
Furthermore, Plaintiff failed to show that anything New AdWords does could qualify
as "filtering," given both the intrinsic evidence and Plaintiff's own validity position on
what "filtering" requires.
