From YHMB zeleration • 6 hours ago Flag
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Redesign vs Implementation - 4 Key points the Court will consider from 7% VRNG motion.
The pacer here ...scribd - 142705423 - Doc-949, Thanks PARAS. Emphasis added below.
1) VRNG first makes it clear that Google are admitting infringement. "Even if Google has or will design around the patents-in-suit, this has no impact on the ongoing royalty rate for the already adjudicated infringing system—again, which Defendants admit was IN USE until at least May 11 2013.
2) Classic Red Herring - Google has NOT provided any EVIDENCE INTO THE RECORD nor expert opinion on the redesign. (In my opinion this confirms more redesign vs implementation) "First, there is no credible evidence substantiating Defendants’ claim that Google’s current system no longer infringes I/P Engine’s patents. Defendants have introduced no evidence into the record explaining how the alleged redesigned system works; nor have they provided any technical expert opinions that the purported redesigned system does not infringe"
3) Matter of Law. "This Court need not resolve the availability or veracity of Google’s alleged non-infringing alternative to set an ongoing royalty rate because it is wrong as a matter of law to claim that reasonable royalty damages are capped at the cost of implementing the cheapest available, acceptable, noninfringing alternative. If Google’s allegedly modified system is later determined to becolorably different, the ongoing royalty rate would not apply to the revenues derived from that system"
4) Illogical? Fourth, if Google’s design-around efforts were truly successful, Defendants should prefer a running royalty to a lump-sum payment. With a running-royalty structure, payments cease being due if and when Google’s system is established to no longer infringe. There is no rational basis for Google to oppose a running royalty limited to infringing use when Defendants actually believe that any and all infringement has already ceased. And yet, Google vigorously opposes a running royalty.
I have to admit I never thought about #4 but it does makes sense. Good luck. Less
