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

Filing 304

Memorandum in Support re 303 MOTION in Limine #3 to Exclude Marketing and High-Level Non-Technical Materials Related to Historical Click-Through Rate (Public Version) filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

I/P ENGINE, INC.
Plaintiff,
Civil Action No. 2:1 l-ev-512

V.
AOL, INC., et al.,
Defendants.

MEMORANDUM IN SUPPORT OF MOTION IN LIMINE 43 TO EXCLUDE
MARKETING AND HIGH-LEVEL NON-TECHNICAL MATERIALS RELATED TO
HISTORICAL CLICK-THROUGH RATE

Plaintiff I/P Engine intends to present to the jury evidence and argument regarding
marketing and high-level non-technical Google AdWords, AdSense for Search, and AdSense for
Mobile documents, including advertiser-facing documents and videos discussing the use of
historical click-through rate ("CTR"). This evidence, as opposed to the actual operation of the
accused products as revealed in technical documents, source code, and depositions of Google
Inc. ("Google") employees, is irrelevant, especially because it is undisputed that
. This
evidence should therefore be excluded from presentation at trial under Federal Rule of Evidence
402. Moreover, Plaintiffs evidence is highly prejudicial to Google and should be excluded
under Federal Rule of Evidence 403. Plaintiffs intent in presenting this evidence is to distract
the jury with side issues by improperly and falsely suggesting that Google intended to mislead
advertisers about the operation of its products, and to confuse the jury as to the actual operation
of the accused products. Accordingly, Google hereby moves this Court, in limine, for an order

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excluding marketing and high-level non-technical materials referencing the use of historical
CTR.
I.

PLAINTIFF INTENDS TO INTRODUCE MA ZKETING AND NONTECHNICAL MATERIAL EVEN THOUGH

As set forth in Defendants' Motion for Summary Judgment, Plaintiffs infringement
contentions, as reflected in Plaintiffs infringement contentions and IIIIIIIIIIIII
1111.1111111111111, are based on the allegation that the accused products use
historical CTR of an advertisement to "filter" ads in determining which ads to display. (D.N.
238, 11-12.)
(Id. , 12-13.)

Nevertheless, even though this issue is not credibly in dispute, Plaintiff appears to intend
to introduce marketing and high-level non-technical documents related to historical CTR in order
to distract the jury with an irrelevant sideshow. At recent depositions, Plaintiffs counsel has
asked multiple questions about marketing documents containing statements regarding the use of
historical CTR of an ad. Plaintiffs counsel has questioned Google witnesses about the accuracy
of the documents, asked whether Google intended to mislead advertisers, and inquired about the
oversight process related to creation of these documents. (Deposition Transcript of Nicholas
Fox ("Fox Tr."), 127:13-128:15; Deposition Transcript ofJonathan Diorio ("Diorio Tr."), 199:623, 119:1-120:18; Deposition Transcript of Jonathan Alferness ("Alferness Tr."), 110:2-111:16.)
But as detailed above, these issues have nothing to do with this patent litigation.
II.

THESE MARKETING AND NON-TECHNICAL MATERIALS ARE
IRRELEVANT, PREJUDICIAL, AND A WASTE OF TIME.

Plaintiffs attempt to use marketing and high-level non-technical documents related to
historical CTR is not relevant or probative of infringement. Plaintiffs own expert acknowledges
that

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Even if this were not the case, it is Google's technical documents, employees, and source
code that are reliable sources of evidence as to the operation of the accused products, not
oversimplified documents directed at laypersons. Accordingly, Google's non-technical
documents are not relevant and should be excluded under Federal Rule of Evidence 402. See
Bradley v. Cooper Tire & Rubber Co., Case No. 4:03-cv-00094, 2007 WL 4624613, at *5 (S.D.

Miss. Aug. 3, 2007) (excluding advertisements regarding the off-road capabilities of the Ford
Explorer in a products liability case under Federal Rules of Evidence 402 and 403 for offering no
probative value and likely resulting in prejudice, confusion, and waste of time).
Further, given that Plaintiff agrees that the products 111111=111111111.
11111111111=11111 , these documents are probative of no issue, and can serve
only to confuse the jury as to the operation of the products. Bradley, 2007 WL 4624613, at *5.
Moreover, Plaintiffs behavior at recent depositions suggests that it intends at trial to
disparage Google for issuing these marketing and non-technical materials and to accuse Google
of misleading its advertisers. (See, e.g., Fox Tr., 127:13-15 ("Q: Do you believe it is misleading
to inform advertisers that quality score is calculated based on historical click-through rate?").)
Such questioning would be nothing but a sideshow because it has nothing to do with whether the
accused products infringe the patents-in-suit.
Google can of course offer evidence to establish that its intent in issuing these documents
is not to mislead, but to simplify technologically complex concepts for a lay audience whose
main concern is using the ftont end of the advertising systems, not understanding technical
details. (Alferness Tr., 102:10-12, 102:25-103:6; Fox Tr., 112:20-113:2.) But it should not have
to, because Plaintiffs insinuations are entirely beside the point. Introduction of this evidence
will only prejudice Google without making any disputed fact more or less probable.
For the foregoing reasons, Defendants respectfully requests that the Court exclude
Plaintiff from presenting any marketing or high-level non-technical materials referencing the use
of historical CTR.

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DATED: September 21, 2012

/s/ Stephen E. Norma
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Counsel for Google Inc., Target Corporation,
IAC Search & Media, Inc., and
Gannett Co., Inc.

By: /s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
Facsimile: [phone]

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Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARREIT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: [phone]
Facsimile: [phone]

Counsel for Defendant AOL, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on September 21, 2012, I will electronically file the foregoing with
the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF)
to the following:
Jeffrey K. Sherwood
Kenneth W. Brothers
DICKSTEIN SHAPIRO LLP
1825 Eye Street NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel jhr Plaintiff I/P Engine, Inc.

/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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