Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (D/B/A FLYP),
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`
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`CIVIL ACTION NO. 6:22-cv-00031-ADA
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`JURY TRIAL DEMANDED
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`GOOGLE LLC’S MOTION TO EXCLUDE OPINIONS OF MR. JUSTIN LEWIS
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 2 of 20
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION ............................................................................................................. 1
`LEGAL STANDARD ........................................................................................................ 1
`BACKGROUND ............................................................................................................... 2
`A.
`Calculating Royalty Indicators Using the
` Agreement .............................. 3
`B.
`Calculating Royalty Indicators Using the Income Approach ................................ 4
`C.
`Adjustment for the Georgia-Pacific Factors .......................................................... 5
`ARGUMENT ..................................................................................................................... 6
`A.
`Mr. Lewis Improperly Factors in
` in Advertisement Revenue .................. 6
`B.
`Mr. Lewis’s Apportionment Methodology Is Unfounded and Incomplete ........... 9
`CONCLUSION ................................................................................................................ 16
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`I.
`II.
`III.
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`IV.
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`V.
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`i
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 3 of 20
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`TABLE OF AUTHORITIES
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`
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`
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`Page(s)
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`Cases
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`Apple Inc. v. Motorola, Inc.,
`757 F.3d 1286 (Fed. Cir. 2014), overruled on other grounds by Williamson v.
`Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015) .................................................................2
`
`Apple Inc. v. Wi-LAN, Inc.,
`25 F.4th 960 (Fed. Cir. 2022) ....................................................................................................1
`
`CloudofChange, LLC v. NCR Corp.,
`No. 6:19-CV-00513-ADA, 2021 WL 12093334 (W.D. Tex. Nov. 9, 2021) ...........................14
`
`Daubert v. Merrell Dow Pharms., Inc.,
`509 U.S. 579 (1993) ...................................................................................................................1
`
`Ericsson, Inc. v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014)..........................................................................................7, 8, 9
`
`Kewazinga Corp. v. Google LLC,
`No. 20-cv-1106-LGS, 2023 WL 6308420 (S.D.N.Y. Sept. 28, 2023) ..................................8, 9
`
`LaserDynamics, Inc. v. Quanta Comput., Inc.,
`694 F.3d 51 (Fed. Cir. 2012)................................................................................................9, 14
`
`Realtime Data, LLC v. Actian Corp.,
`No. 6:15-CV-463-RWS-JDL, 2017 WL 11661896
`(E.D. Tex. Mar. 24, 2017) ......................................................................................13, 14, 15, 16
`
`Roche Diagnostics Corp. v. Meso Scale Diagnostics, LLC,
`30 F.4th 1109 (Fed. Cir. 2022) ..................................................................................................9
`
`United States v. Valencia,
`600 F.3d 389 (5th Cir. 2010) .....................................................................................................2
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`Other Authorities
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`Fed. R. Evid. 702 .............................................................................................................................1
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`ii
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 4 of 20
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`I.
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`INTRODUCTION
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`Google moves to exclude the opinions of Flyp’s damages expert witness, Justin Lewis, for
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`two reasons. First, in a transparent attempt to inflate the claimed damages, Mr. Lewis ties his
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`royalty rate to Google’s irrelevant advertising revenue. Second, Mr. Lewis does not properly
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`apportion to the benefits of the claimed technology. Neither Mr. Lewis nor the technical expert he
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`relies on disputes that features of the accused product that they attribute to the asserted patents
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`existed in the prior art and are present in unaccused versions of the accused product. Nevertheless,
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`Mr. Lewis attributes 100% of the value of those features to the patented technology.
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`The Court’s gatekeeping function is designed to keep such unreliable and unsupportable
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`opinions from reaching the jury. Accordingly, Google respectfully requests that the Court exclude
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`these improper opinions and any opinions stemming therefrom.
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`II.
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`LEGAL STANDARD
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`“Expert evidence can be both powerful and quite misleading . . . .” Daubert v. Merrell Dow
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`Pharms., Inc., 509 U.S. 579, 595 (1993) (citation omitted). Rule 702 requires the district court to
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`act as a gatekeeper to “ensure that any and all scientific testimony or evidence admitted is not only
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`relevant, but reliable.” Id. at 589. The trial judge’s general “gatekeeping” obligation applies not
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`only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and
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`“other specialized” knowledge. Fed. R. Evid. 702(a). This “entails a preliminary assessment of
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`whether the reasoning or methodology underlying the testimony is scientifically valid and of
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`whether that reasoning or methodology properly can be applied to the facts in issue.” Apple Inc. v.
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`Wi-LAN, Inc., 25 F.4th 960, 971 (Fed. Cir. 2022) (quoting Daubert, 509 U.S. at 592–93). “A
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`reasonable or scientifically valid methodology is nonetheless unreliable where the data used is not
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`sufficiently tied to the facts of the case.” Id. (citation omitted). The ultimate inquiry in a Rule 702
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`determination is whether the expert’s testimony is sufficiently reliable and relevant to be helpful
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`1
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 5 of 20
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`to the finder of fact and thus to warrant admission at trial. United States v. Valencia, 600 F.3d 389,
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`424 (5th Cir. 2010). “That the gatekeeping role of the judge is limited to excluding testimony based
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`on unreliable principles and methods is particularly essential in the context of patent damages.”
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`Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1315 (Fed. Cir. 2014), overruled on other grounds by
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`Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015).
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`III. BACKGROUND
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`Flyp seeks between
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` in past damages for alleged
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`infringement of U.S. Patent Nos. 9,667,770; 10,051,105; 10,334,094; 11,012,554; and 11,218,585
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`(collectively the “Asserted Patents”). According to Flyp, the Asserted Patents are “directed to
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`innovations that claim a particular way of setting up and connecting telephone calls, and delivering
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`information related to such telephone calls using an Internet Protocol (IP) or other data channel,
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`while delivering the voice portion of the call in accordance with telecom voice channel delivery
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`standards.” Dkt. 103 (Second Amended Complaint) ¶ 12. Flyp claims that the benefit of doing so
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`is that, “[a]s opposed to the standard mobile phone that is connected to a single phone number,
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`Flyp’s patented systems and methods enable a particular way for mobile phone users to create and
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`own multiple phone numbers on a single mobile device while maintaining the integrity of caller-
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`identification functions.” Id.
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`Flyp accuses Google’s app-based telephone feature known as Google Voice of infringing
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`the Asserted Patents. See id. ¶ 23. Google Voice has two offerings: a free version (“Consumer
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`Voice”) and a paid subscription version (“Enterprise Voice”). Consumer Voice was introduced in
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`2009 and is available to users based in the United States. See Ex. 1 at 22:9–24. Enterprise Voice
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`was made available in April 2019 to customers worldwide as an add-on to their Google Workspace
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`subscriptions. Ex. 2.
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`2
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 6 of 20
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`Flyp alleges that the date of first infringement by Google Voice was on or about
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`Ex. 3 at 24, 26–27.1 Mr. Lewis thus asserts
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`that the hypothetical negotiation date is April 2018. Lewis Report at 27. At a high-level, Mr. Lewis
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`calculates damages in this case as a royalty rate, applied to each Google Voice subscriber on a
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`monthly basis. Id. at 5. The opinions relevant to this motion are summarized below.
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`A.
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`Calculating Royalty Indicators Using the Dialpad Agreement
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`Mr. Lewis analyzes a comparable license agreement between Flyp and
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` whereby
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`Flyp licensed
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` (“the
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` Agreement”). Mr. Lewis purports
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`to calculate an effective royalty rate for the Asserted Patents licensed to
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` Ultimately, he
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`determines “[t]he implied portfolio rate per infringing user-month the parties agreed to was
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` Lewis Report at 38.2
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`Mr. Lewis performs a similar analysis to estimate an implied royalty rate related to the
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` cash payment under the assumption that the
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` Agreement only applied to
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`When only considering
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` Mr. Lewis calculates the implied effective royalty under the
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`1 Exhibit 3 is the Expert Report of Justin Lewis regarding damages served in this case on
`September 12, 2023, hereinafter the “Lewis Report.”
`2 Mr. Lewis creates the concept of “user-months.” Mr. Lewis defines a user-month as a single
`month of allegedly infringing service provided to a single unique user: “[f]or example, a subscriber
`who is active for a full year generates twelve user-months of . . . service.” Lewis Report at 30, n.
`190.
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`3
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 7 of 20
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`Agreement to be
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`. The below chart summarizes the range of royalty indicators
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`related to the
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` Agreement calculated by Mr. Lewis. See id. at 47.
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`B.
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`Calculating Royalty Indicators Using the Income Approach
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`Next, Mr. Lewis proposes additional royalty ranges by allegedly using the “income
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`approach” from both Google’s and Flyp’s perspectives. From Google’s perspective, Mr. Lewis
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`begins with
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` Lewis Report at 49. Mr. Lewis then performs a series of calculations based on alleged
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`apportionments and the profitability of Google Voice. As one apportionment step, Mr. Lewis relies
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`on
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`list, Mr. Lewis claims that
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` Id. at 53–54. From this narrow
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` and, based on his
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`discussion with Flyp’s technical expert, Dr. Scott Nettles, asserts that
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` of these features are
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`“related to or impacted by the technology covered by the Patents-at-Issue.” Id. at 53–54, Ex. 4.0.1.
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`Rather than performing an additional apportionment analysis on each of the
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` relevant features
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`(either independently or with Dr. Nettles), Mr. Lewis ascribes 100% of each of these
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` features
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`to the Asserted Patents, and apportions at this step by a ratio of
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`Id. Taking this apportionment into account, Mr. Lewis contends that the
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`royalty range from Google’s perspective would have been
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`per user, per month. Id. at
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`55.
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`4
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 8 of 20
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`From Flyp’s perspective, Mr. Lewis performs a calculation similar to the one he performs
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`from Google’s perspective. As a starting point, Mr. Lewis uses
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`. Id. Then, Mr. Lewis performs calculations based on Flyp’s profits and some
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`alleged apportioning. Id. at 55–57. Pertinent to this motion, Mr. Lewis determines that six of nine
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`features of the Flyp app, or 66.7% are related to the Asserted Patents. Lewis Report at 55–56, Ex.
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`4.1.1. Mr. Lewis attributes 100% of the value of each of these six features to the Asserted Patents.
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`This results in an apportioned profit per user of
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` Id.
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`Mr. Lewis concludes there are various ranges of “royalty indicators” as follows. See id. at
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`57–58.
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`C.
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`Adjustment for the Georgia-Pacific Factors
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`Finally, Mr. Lewis analyzes the royalty rate indicator ranges through the lens of the
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`hypothetical negotiation, indicating which Georgia-Pacific factors would favor Flyp, Google, or
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`neither of the parties. Lewis Report at 58–96. In so doing, Mr. Lewis discusses at length revenue
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`Google obtains from advertising, particularly regarding Georgia-Pacific factor six (“The effect of
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`selling the patented specialty in promoting sales of other products of the licensee; the existing
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`value of the invention to licensor as a generator of sales of his non-patented items; and the extent
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`of such derivative or convoyed sales.”). Id. at 8–14, 63–77. He does so even though he admits that
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 9 of 20
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`Consumer Voice does not display advertisements. Id. at 11. Ultimately, Mr. Lewis concludes that
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`the parties would have agreed to a royalty rate of either
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` applied to each Google
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`Voice subscriber on a monthly basis. Id. at 96.
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`Beginning the damages calculation in
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`, Mr. Lewis estimates a royalty base
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`through January 2024 of
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`user-months. Applying royalty rates of either
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`per user-month results in total claimed royalty damages of
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`as shown in the following figure from the Lewis Report. Id. at 5, Figure 7, Figure 35.
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`IV. ARGUMENT
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`Although Google believes that Mr. Lewis’s entire methodology is fundamentally flawed,
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`this motion focuses on two aspects that are beyond the pale.
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`A. Mr. Lewis Improperly Factors in
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` in Advertisement Revenue
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`Mr. Lewis’s opinions incorporating Google’s advertising revenue into the damages
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`calculation are improper. Advertising revenue is completely irrelevant to this case. Nevertheless,
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`enticed by the prospect of relying on
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` in unrelated advertising revenue (Lewis
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`6
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 10 of 20
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`Report at 8) to inflate the damages number in this case, Mr. Lewis attempts to incorporate it
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`anyway. Mr. Lewis does so even though he admits Consumer Voice does not display ads, and even
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`though he admits he has seen no evidence that Google Voice contributes to Google’s ad revenue.
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`Id. at 11; Ex. 4 at 123:21–124:15. Worse, even if Google Voice did contribute to Google’s ad
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`revenue in some unknown, undefined way, Mr. Lewis offers no analysis of how much of that
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`revenue could be attributable to Google Voice, as is legally required. See Ericsson, Inc. v. D-Link
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`Sys., Inc., 773 F.3d 1201, 1226 (Fed. Cir. 2014). In fact, it is entirely unclear how the ad revenue
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`ultimately affects Mr. Lewis’s damages calculations, other than that it has an undefined and
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`unmeasured “upward” impact on the royalty rate, rendering it both prejudicial and confusing to a
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`jury. Lewis Report at 76–77.
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`Mr. Lewis’s improper consideration of ad revenue impacts his analysis in two main
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`respects. First, it feeds into his unfounded conclusion that
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` is the proper starting
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`point for the per-unit royalty rate from Google’s perspective. Even though there is a free version
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`of Google Voice (Consumer Voice), Mr. Lewis assumes that Google would value each Google
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`Voice subscription (free or paid)
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`. Id. at 49. Mr. Lewis never explains in his report why it is
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`appropriate to ignore that Google offers a version of the accused product for free. Instead, Mr.
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`Lewis cites documents discussing the alleged value of Enterprise Voice to Google and one study
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`in 2022 that indicated that
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` Id. at 50. Mr. Lewis does not cite any evidence that Google would
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`consider a free product to have a value of
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`Mr. Lewis thus inflates the value of the free product by assuming it provides some indirect
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`benefit to Google, such as ad revenue. Indeed, he states repeatedly and without any support that
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 11 of 20
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`Id. at 9–14. Mr. Lewis’s
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`opinions regarding ad revenue thus infect the starting point for his calculation of Google’s
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`apportionment under his income approach.
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`Second, Mr. Lewis’s flawed incorporation of ad revenue distorts his overall royalty rate
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`because he uses ad revenue as a justification for an undefined “upward” impact on the hypothetical
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`negotiation rate under Georgia-Pacific factor six. Lewis Report at 63–76. Although Mr. Lewis
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`spends a dozen pages attempting to tie ad revenue to Google Voice, he fails altogether. He admits
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`that Consumer Voice does not display ads (id. at 11),
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` (Ex. 4 at 123:21–
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`124:15), and that he had not “received data or testimony from other areas to confirm whether or
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`not that benefit material was provided” (id). When asked what evidence he did have that Google
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`Voice generated ad revenue, Mr. Lewis said that
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` Id.
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`(emphasis added). But, Mr. Lewis admitted that he “wasn’t able to confirm or to test for those
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`benefits.” Ex. 4 at 124:16–19.
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`Even assuming that Google Voice contributes to ad revenue, Mr. Lewis never quantifies
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`how much of the ad revenue is attributable to Google Voice, let alone the claimed features. He
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`instead summarily concludes that this factor results in an amorphous “upward” impact on the
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`royalty range. Lewis Report at 76–77. This analysis is legally insufficient. See Ericsson, 773 F.3d
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`at 1226 (“The essential requirement is that the ultimate reasonable royalty award must be based
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`on the incremental value that the patented invention adds to the end product.”).
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`Another court recently struck a damages expert’s similarly improper attempt to incorporate
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`Google’s irrelevant ad revenue. In Kewazinga Corp. v. Google LLC, the court struck opinions
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 12 of 20
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`linking advertisement revenue gained through Google Search, which was not accused of
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`infringement, to the accused Google Maps product. No. 20-cv-1106-LGS, 2023 WL 6308420
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`(S.D.N.Y. Sept. 28, 2023). As Mr. Lewis does here, the plaintiff in Kewazinga contended that the
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`accused functionality was part of an “ecosystem” of products that provides value to users
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`regardless of whether it is actually used. The court assumed that features can add an indirect value
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`even when not directly used, but it found the ecosystem argument did not remedy the problem
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`because the expert offered “no basis to conclude that her methodology accurately reflects that
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`value.” Id. at *3. The same is true here. See Ex. 4 at 124:16–19 (“I wasn’t able to confirm or to
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`test for those benefits.”).
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`Mr. Lewis’s departure from revenue associated with the accused products to focus instead
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`on ad revenue from the entire Google ecosystem—without evidence of a link between the two—
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`merits excluding his opinions related to ad revenue. LaserDynamics, Inc. v. Quanta Comput., Inc.,
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`694 F.3d 51, 67 (Fed. Cir. 2012) (“A damages theory must be based on ‘sound economic and
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`factual predicates.’” (citation omitted)); see also, e.g., Roche Diagnostics Corp. v. Meso Scale
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`Diagnostics, LLC, 30 F.4th 1109, 1123 (Fed. Cir. 2022) (cautioning that “a patentee must take care
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`to seek only those damages attributable to the infringing features” (citations omitted)). Mr. Lewis’s
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`opinions related to Google’s ad revenue should therefore be excluded.
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`B. Mr. Lewis’s Apportionment Methodology Is Unfounded and Incomplete
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`It is well established that a plaintiff must apportion between patented and unpatented
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`features. “The essential requirement is that the ultimate reasonable royalty award must be based
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`on the incremental value that the patented invention adds to the end product.” Ericsson, 773 F.3d
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`at 1226. Mr. Lewis fails to apportion in his analysis from Google’s perspective, his analysis from
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`Flyp’s perspective, and his analysis of certain Georgia-Pacific factors.
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 13 of 20
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`First, although Mr. Lewis apportions for
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` supposedly relevant features out of
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` alleged
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`total features in Google Voice, he fails to perform an additional apportionment step on any of the
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` features. He thus ascribes 100% of the value from each of those
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` features to the Asserted
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`Patents. Lewis Report at 53–54, Ex. 4.0.1. Yet, Mr. Lewis does not dispute that these
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` features
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`all existed in prior art (i.e. as of July 16, 2013) and in unaccused
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` versions of
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`Google Voice. Ex. 4 at 152:3–11 (“I think we discussed that many of those features existed before
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`the -- before the accused version was released. So I think that -- I don’t know if all of them but I
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`think many of them were -- were in the product in some form”); Ex. 5 at 91:4–9 (“I have no
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`knowledge about what Google Voice -- beyond the limited exploration I did, what Google Voice
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`did prior to 2017 at all.”).
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`The features Mr. Lewis attributes to the Asserted Patents are:
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` Lewis Report Ex. 4.0.1. Yet each of these features existed
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`before
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`, when Flyp asserts that Google Voice began infringing. For example:
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` An article dated April 2, 2009 stated: “Users will soon be able
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`to register, sign up for a phone number in a local area code, and add multiple landline and
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`cell-phone numbers to an account.” Ex. 6 at GOOG-FLYP-00000250; see also Ex. 143
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`¶ 226
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`3 Exhibit 14 contains excerpts from the expert report of Dr. Oded Gottesman regarding invalidity
`served on September 12, 2023.
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`10
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 14 of 20
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` An internal Google document dated
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` Ex. 7 at GOOG-FLYP-00000063; see also
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`Ex. 14 ¶ 213
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`An internal Google document
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`GOOG-FLYP-00002835; see also Ex. 155 ¶ 133
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` An internal Google document
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` Ex. 8 at GOOG-FLYP-00002835; see also Ex. 15 ¶ 131
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` Ex. 8 at
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` Ex. 7 at GOOG-FLYP-00000063.
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`5 Exhibit 15 contains excerpts from the expert report of Dr. Oded Gottesman regarding
`noninfringement served on October 10, 2023.
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`11
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 15 of 20
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` An internal Google document
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` Ex. 9 at GOOG-FLYP-00000092; see also Ex. 15
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`¶ 133
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`An internal Google document
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`10 at GOOG-FLYP-00000566–567, 569; see also Ex. 15 ¶ 135
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` Ex.
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` An article dated April 2, 2009 stated: “Users will soon
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`be able to register, sign up for a phone number in a local area code, and add multiple
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`landline and cell-phone numbers to an account.” Ex. 6 at GOOG-FLYP-00000250; see also
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`Ex. 15 ¶ 136
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`12
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 16 of 20
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`Ex. 11; see also Ex. 14 ¶ 82
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` an internal Google document
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` Ex. 12; see also Ex. 14 ¶ 82
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`“Dr. Gottesman also confirmed that each of these features was known in prior art, dating
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`back to at least as early as the 2010 to 2012 time period.” Ex. 13 ¶ 129. And Dr. Gottesman’s
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`assessment is supported by his study of “the source code for Google Voice, both for the Google
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`Voice apps, and the Google Voice ‘backend,’ from 2009 through July, 2013[.]” Ex. 14 ¶ 2.
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`Critically, Mr. Lewis does not dispute the pre-existence of these features in his expert
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`report. Neither Mr. Lewis nor Dr. Nettles performs any analysis regarding any incremental
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`improvement the Asserted Patents might, or might not, have provided to any of those
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` cited
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`features. Nor did Mr. Lewis have any discussions with Flyp’s validity expert, Dr. Conte, who
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`analyzed prior art Google Voice functionality, regarding any aspect of Google Voice functionality
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`that existed before the alleged first date of infringement. Lewis Report at 23 (“My understanding
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`regarding the benefits of Flyp’s patented technology is based on my review of the Expert Report
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`of Dr. Scott Nettles dated September 12, 2023, and discussions with Dr. Nettles, Mr. Peter Rinfret,
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`and with counsel.”).
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`This case is similar to Realtime Data, LLC v. Actian Corp., No. 6:15-CV-463-RWS-JDL,
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`2017 WL 11661896 (E.D. Tex. Mar. 24, 2017). Like Mr. Lewis, the damages expert in Realtime
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`formed opinions based on apportionment related to “key features” performed by the technical
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 17 of 20
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`expert. Id. at *3. And, as here, the alleged apportionment in Realtime was done initially by
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`“divid[ing] the number of patented ‘features’ of an accused product by an overall number of
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`identified features in the product.” Id. at *4. In Realtime, the technical expert attributed the full
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`value of each of the “patented features” to the asserted patents, even though certain aspects of
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`those features did not relate to the patented technology. Ultimately, the court struck the technical
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`expert’s opinion on the apportionment as well as the damages expert’s opinion relying on that
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`apportionment because the “value attributed to the claimed invention is effectively inflated to also
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`include unclaimed features of the accused products.” Id. The same is true here, where Mr. Lewis
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`attributes the entire value of
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` separate features to the Asserted Patents even though he and Dr.
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`Nettles do not, and cannot, dispute that at least some—if not all—of those features existed in prior
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`art and unaccused versions of Google Voice. Ex. 4 at 152:3–11; Ex. 5 at 91:4–9. Thus, Mr. Lewis’s
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`“apportionment calculation is exactly the kind of ‘plucked out of thin air’ apportionment that the
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`Federal Circuit and many other district courts have rejected,” and it should be rejected here.
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`CloudofChange, LLC v. NCR Corp., No. 6:19-CV-00513-ADA, 2021 WL 12093334, at *4 (W.D.
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`Tex. Nov. 9, 2021); see also LaserDynamics, 694 F.3d at 69 (rejecting apportionment that was
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`“plucked out of thin air based on vague qualitative notions of the relative importance of the
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`[accused technology]”).
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`In addition, Mr. Lewis’s analysis from Flyp’s perspective ascribed 100% of the value for
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`the identified features to the Asserted Patents. Lewis Report at 55–56, Ex. 4.1.1. Specifically, Mr.
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`Lewis claims that six of nine Flyp app features, or 66.7%, are related to the Asserted Patents. Id.
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`These are basic features that unquestionably existed in prior art systems. Based on the discussion
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`above regarding the pre- and post-accused versions of Google Voice, it is clear that only some
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 18 of 20
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`incremental portion of the Flyp features that purportedly incorporated the patented technology
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`were actually attributable to the Asserted Patents.
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`For example, two of the six Flyp features that Mr. Lewis attributes entirely to the Asserted
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`Patents are “customize your voicemail” and “multiple numbers.” Id. However, Google Voice
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`supported customizable voicemail (Ex. 12) and multiple numbers (Ex. 6 at GOOG-FLYP-
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`00000250)
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`. The entirety of these features cannot be attributable to the Asserted
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`Patents because the
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` of Google Voice is not accused. Thus, Mr. Lewis’s
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`apportionment for the Flyp features is flawed for the same reasons as for the Google features and
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`should be excluded. See Realtime, 2017 WL 11661896, at *3–4.
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`Mr. Lewis undeniably fails to apportion. He entirely attributes to the Asserted Patents
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`features that he does not dispute were present in non-infringing and prior art versions of the
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`accused product. Doing so inflates Mr. Lewis’s opinions regarding the royalty indicator range for
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`the “Google apportionment” and “Flyp apportionment.” And it also skews multiple Georgia-
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`Pacific factors including factors 9 (“The utility and advantages of the patent property over old
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`modes or devices, if any, that had been used for working out similar results”) and 10 (“The nature
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`of the patented invention; the character of the commercial embodiment of it as owned and
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`produced by the licensor; and the benefits to those who have used the invention”), which have an
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`upward impact on Lewis’s ultimate royalty range. See Lewis Report at 80–86. It also impacts
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`Georgia-Pacific factor 13 (“The portion of the realizable profit that should be credited to the
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`invention as distinguished from non-patented elements, the manufacturing process, business risks,
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`or significant features or improvements added by the infringer.”). Id. at 90–93. Although Mr.
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`Lewis claims this factor has a “downward” impact on the hypothetical negotiation, this does not
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`correct his error of attributing 100% of the
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` features to the asserted patents. Flyp “cannot
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 19 of 20
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`simply evade questions regarding how it calculated the ultimate value attributable to the infringing
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`features by pointing to the [Georgia-Pacific] analysis performed by the damages expert as opposed
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`to the technical expert, or vice-versa.” Realtime, 2017 WL 11661896, at *4.
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`V.
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`CONCLUSION
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`The Court should strike the opinions of Mr. Lewis discussed above. Individually, these
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`errors unjustifiably inflate his royalty ranges. Cumulatively, these flaws yield an unsupported
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`damages demand in excess of
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`
`
`. Due to the unreliable nature of these opinions, they
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`should be stricken.
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`DATED: November 14, 2023
`
`
`
`
`Respectfully Submitted,
`
`/s/ Robert W. Unikel
`Robert W. Unikel (Pro Hac Vice)
`robertunikel@paulhastings.com
`John A. Cotiguala (Pro Hac Vice)
`johncotiguala@paulhastings.com
`Daniel J. Blake (Pro Hac Vice)
`danielblake@paulhastings.com
`Grayson S. Cornwell (Pro Hac Vice)
`graysoncornwell@paulhastings.com
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Telephone: (312) 499-6000
`Facsimile: (312) 499-6100
`
`Elizabeth Brann (Pro Hac Vice)
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4655 Executive Drive, Suite 350
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert R. Laurenzi (Pro Hac Vice)
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`
`16
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`Case 6:22-cv-00031-ADA Document 171 Filed 11/21/23 Page 20 of 20
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`
`
`Facsimile: (212) 319-4090
`
`Joshua Yin (Pro Hac Vice)
`joshuayin@paulhastings.com
`David M. Fox (Pro Hac Vice)
`davidfox@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Paige Arnette Amstutz
`State Bar No.: 00796136
`pamstutz@scottdoug.com
`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Telephone: (512) 495-6300
`Facsimile: (512) 495-6399
`
`Attorneys for Defendant Google LLC
`
`
`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 14th day of November, 2023, a true and correct copy of the
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`foregoing document was filed electronically with the Clerk of Court using the CM/ECF system.
`
`As of this date, all counsel of record have consented to electronic service and are being served
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`with a copy of this document through the Court’s CM/ECF system.
`
`
`
`/s/ Robert W. Unikel
`Robert W. Unikel
`
`
`
`17
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`