I/P Engine, Inc. v. AOL, Inc. et al

Filing 1028

Memorandum Opening Brief on Post-Judgment Royalties filed by I/P Engine, Inc.. (Attachments: # 1 Declaration of Dr. Ophir Frieder, # 2 Declaration of Dr. Stephen Becker)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
I/P ENGINE, INC.,
)
)
Plaintiff,
)
v.
)
Civ. Action No. 2:11-cv-512
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)
DECLARATION OF DR. OPHIR FRIEDER, PH.D.
1.

I have been retained by I/P Engine, Inc. in the above-captioned case. I testified at

trial in this matter, and have been asked to render an opinion on whether New AdWords was no
more than a colorable variation of Old AdWords. I prepared a report for this case dated
September 25, 2013 and I understand it is of record in this case as Exhibit 6 to D.I. 1005. My
analysis and opinions set forth in that report are hereby incorporated in their entirety. The
opinions below are based on evidence included in that report.
2.

The following is my analysis of relevant features of Old and New AdWords:

1

3.

I do not believe there is a significant difference in the function, way, and result of

the relevant functionality in New and Old AdWords. New AdWords is no more than a colorable
variation of Old AdWords.
4.

The filtering step itself is identical in Old AdWords and New AdWords—

The timing
of the step is inconsequential (the asserted claims do not require filtering to be either pre or post
auction) and appears to be the result of

. To the extent

Defendants assert a difference in timing, the function and way are at least substantially the same
as in Old AdWords and the result is the same.
5.

I have reviewed recent documents from Google’s website explaining the

AdWords system to their customers. The documents are dated after Google claims to have
implemented its changes, and do not describe any change in the AdWords system with regard to
eligibility. The website documents still describe that Google determines a candidate
advertisement’s “eligibility” based on a combination of content and collaborative data. Id.
6.

I have read the transcript of the deposition of Bartholomew Furrow dated

September 20, 2013. I understand from I/P Engine’s attorneys that the transcript is true and
correct. The following are quotations from that transcript demonstrating that New AdWords is
no more than a colorable variation of Old AdWords:

2

3

7.

I have also reviewed relevant source code produced by Google.

Id. Mr. Furrow testified that this portion of code

Furrow dep. tr. at 242:14-17.
8.
Furrow Dep.
at 110:7-18. My analysis applies equally to each of these products.
I declare under penalty of perjury of the laws of the United States of America that the
foregoing is true and correct.
Dated: October 30, 2013

By: __________________________________
Dr. Ophir Frieder
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