Replies to post #34700 on XpresSpa Group Inc (XSPA)

[chestnut42]

I was under the assumption that GOOG has to pay, whatever JJ rules upon, if not they will be in contempt. If they want to imply that they are no longer infringing on VRNG's patents, it is their job to PROVE they are no longer infringing. Why should JJ have to set a discovery and briefing on GOOG's workaround, not his duty, IMO.

From Secion IV on page 18:

Google’s alleged design around does not constitute a non-infringing alternative that can be relied upon to reduce the ongoing royalty rate for the adjudged infringing system.“Acceptable substitutes that the infringer proves were available during the accounting period can preclude or limit [damages]; substitutes only theoretically possible will not.”
Grain Processing
,185 F.3d at 1353 (emphasis added). The burden of proving the availability of a non-infringing alternative during the accounting period falls on Defendants