XpresSpa Group Inc (XSPA)

[Red Angus]

I am surprised at the way that Goog's brief handled the issue regarding an enhancement in percent of royalty rate due to Goog’s continued willful use of the infringed patent.

Goog obviously intentionally misunderstands the nature of the “willful” element in question. Goog cites case law and uses arguments that apply to whether Vrng proved willfulness in the jury trial itself. (Vrng probably should have alleged it, but didn’t) But that’s not at all what the court added a willfulness enhancement for. The enhancement percentage has to do with the fact that Goog deliberately, intentionally, purposefully, arrogantly, continues to infringe post-trial after a jury finding of infringement.

Goog’s argument in this area is almost insulting to the appellate court. Goog may not agree with what Judge Jackson did regarding royalty enhancement, but to deliberately call the “willfulness” element something that it isn’t is so improper that Goog will get slaughtered on this issue imo. Goog’s attempt to miscast what Jackson did will earn it no points at all. Goog not only won’t trick the court on this issue, but its mischaracterization of what Jackson did gives Goog’s brief the look of desperation on this point. Really odd, in my opinion.