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

Filing 309

Memorandum in Support re 277 MOTION for Sanctions Plaintiff I/P Engine, Inc.'s Second Motion for Discovery Sanctions Regarding Untimely Discovery Responses filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Proposed Order)(Sherwood, Jeffrey)

Exhibit 6 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
I/P ENGINE, INC.,
)
)
Plaintiff,
)
v.
)
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)

Civ. Action No. 2:11-cv-512

PLAINTIFF I/P ENGINE, INC.’S
FIRST DAMAGES RULE 30(b)(6) NOTICE OF DEPOSITION OF
DEFENDANT GOOGLE, INC.
PLEASE TAKE NOTICE that Plaintiff I/P Engine, Inc. (“I/P Engine”), by and through
its attorneys, will take the deposition upon oral examination of Defendant Google, Inc.
(“Google”) pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure and the Local
Rules of the Eastern District of Virginia. The deposition will take place at 9 AM on May 4, 2012
at the offices of Dickstein Shapiro LLP, 1825 Eye Street, NW, Washington, DC 20006, or such
other time, day, and location as may be mutually agreed upon by counsel. The deposition will
continue from day to day until completed, with such adjournments as to time and place as may
be necessary. The deposition will be made before an officer authorized to administer an oath and
will be recorded by stenographic and/or videographic means.
PLEASE TAKE FURTHER NOTICE that Google shall designate, pursuant to Rule
30(b)(6), one or more officers, directors, managing agents, or employees (or other persons) who
are competent, consent to testify on behalf of Google, and have the best overall knowledge of all
matters known or reasonably available to Google of each of the following topics, and, for each
person so designated, Google shall set forth in a written response each of the subjects to which

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each designee will testify. Pursuant to the Discovery Plan, Google shall attempt in good faith to
identify, for each person designated, the topics on which the witness is being offered to testify
seven days in advance of the agreed-upon deposition date.
DEFINITIONS
For purposes of this Notice, the following definitions apply:
A.

“Defendant Google, Inc.” means the Defendant in this lawsuit, Google, Inc. and

includes its respective predecessors, subsidiaries, divisions, parents or otherwise related entities
and/or divisions thereof, and includes directors, officers, present and former employees, agents,
representatives and attorneys of such entities and/or divisions thereof.
B.

“I/P Engine” means the Plaintiff in this lawsuit, I/P Engine, Inc.

C.

“Quality Score” means the “quality score” referenced internally on G-IPE-

0146189 and externally in IPE 0000079.
D.

“LPQ Score” means the “LPQ score” referenced on G-IPE-0146189 and

externally as “landing page” in IPE 0000079.
E.

“QBB pCTR” means the “QBB pCTR” referenced on G-IPE-0146189. This

score is used in “Quality Score” for disabling.
F.

“Relevance” means the “Relevance score” referenced internally on G-IPE-

0146189 and externally in IPE 0000079.
G.

“Ad Coverage” means the percentage of ad impressions that one generates

compared to the overall volume of available impressions on the Google Network.
H.

“Ad Depth” means the average number of advertisements that one views after

performing a search.
I.

“Other search advertising systems” means the search advertising systems of the

other defendants and any other third parties.

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K.

“Google AdWords” means Google’s advertising program that serves Search Ads

(as defined on G-IPE-0096924) and displays advertisements alongside Google’s query-based
search results. Google AdWords is one of the accused products in the present litigation.
L.

“Google AdSense for Search” means Google’s advertising program that allows

third parties to monetize searches on their websites (as defined on G-IPE-0096924) and allows
websites to display advertisements alongside their query-based search results. Google AdSense
for Search is one of the accused products in the present litigation.
N.

“Click Through Rate” or “CTR” means the ratio of clicks to impressions for an ad

or page as defined on G-IPE-0096925.
O.

“The Overture System” means the search advertising program that was offered by

Overture Services, Inc. and was the subject of a license agreement between Yahoo! and Google.
TOPICS
1. Identification and technical explanation of any and all non-infringing alternatives on
which Google intends to rely upon to support a claim and defense.
2. The percentage of total search advertising results for which Google AdWords and
Google AdSense for Search (rather than other search advertising systems) was used by end users,
and the amount and percentage of Google’s gross and net search advertising revenue derived
from:
a. Google AdWords;
b. Google AdSense for Search;
c. systems Google intends to rely upon as non-infringing alternatives; and
d. other search advertising systems.
3. The actual, budgeted and projected sales/revenues (gross and net), profits and loss,
incremental and marginal profits, and direct and overhead/allocated costs of Google AdWords

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and Google AdSense for Search including, but not limited to, revenue per search calculations
accounting for Ad Coverage, Ad Depth, click through rate, and cost per click.
4. The percentage of revenue increase that in-house testing (or other projections)
performed by Google (or on Google’s behalf ) show is attributed to Quality Score, including:
a. nature and scope of the testing;
b. actual, budgeted and projected revenue increase;
c. actual, budgeted and projected revenue increase due to adding Relevance and
the LPQ Score into Quality Score;
d. actual, budgeted and projected revenue increase due to adding the combination
of such content relevancy factors with click through rate data; and
e. changes in revenue per search, AdCoverage, AdDepth, click through rate, cost
per click, and conversion rate.
5. Revenue sharing and profit sharing arrangements with co-defendants of Google
AdSense for Search.
6. The time and costs expended on the researching, designing, developing and testing of
Quality Score.
7. The actual, budgeted and projected sales/revenues (gross and net), profits and loss,
incremental and marginal profits, and direct and overhead/allocated costs of any non-infringing
alternatives Google intends to rely upon to support a claim or defense.
8. Google’s pricing (including without limitation revenue sharing) strategies, evaluations
of competitor’s prices and pricing strategies, and Google’s determination of prices to charge for
allowing non-Google websites to use Google AdWords and Google AdSense for Search.

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9. Experiments or tests of search advertising systems that were evaluated relative to the
decision to implement the commercial version of Quality Score including, but not limited to,
Google’s evaluations, assessments, and analyses of the commercial success of Quality Score.
10. Comparisons and evaluations directed to the differences between the average
revenue per search, gross and net revenue, ad search results quality, and conversion rates of
Google AdWords and Google AdSense for Search, and of the non-infringing alternatives on
which Google intends to rely upon to support a claim and defense including, but limited to, the
Overture system.
11. Google’s marketing, business and sales strategy and plans for Quality Score,
including, but not limited to, Google’s reasons for implementing, and if applicable for deimplementing, Quality Score, and Google’s marketing, advertising, and/or other written
statements and documents about the advantages and benefits of Quality Score, in general and as
compared to other search advertising systems.
12. The market share of Google AdWords and Google AdSense for Search in the search
advertising market, including comparisons between Google AdWords and Google AdSense for
Search and Google’s other search advertising systems, and as compared to Google’s competitors
search advertising systems.
13. License agreements and/or covenants not to sue to which Google is a party relating
to the grant of rights and/or covenants in search advertising technologies including, but not
limited to, Google’s licensing policies and strategies for Google AdWords and Google AdSense
for Search and more generally for search advertising technologies.
14. Negotiation and evaluation of license agreements, covenants not to sue, settlement
agreements, and/or agreements relating to the purchase and/or sale of patents or non-patented
search advertising technologies.

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15. Agreements to which Google is a party relating to search advertising patents or in
which rights in search advertising technologies are granted.
16. Google’s indemnification policy, and its indemnification obligations to codefendants, related to Google AdWords and Google AdSense for Search
17. The complete and full factual basis for Google’s assertion of paragraph 140 of its
First Amended Answer asserting “Plaintiff’s claims are barred, in whole or in part, by the
equitable doctrines of laches and estoppel.”
18. The complete and full factual basis for Google’s assertion of paragraph 141 of its
First Amended Answer asserting “Plaintiff’s ability to recover damages is limited by the
provisions of 35 U.S.C. §§ 286-287.”

Dated: April 2, 2012

By: /s/ Charles J. Monterio, Jr.
Jeffrey K. Sherwood
Frank C. Cimino, Jr.
Kenneth W. Brothers
DeAnna Allen
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Donald C. Schultz
W. Ryan Snow
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of April, 2012, the foregoing PLAINTIFF I/P
ENGINE, INC.’S FIRST LIABILITY RULE 30(b)(6) NOTICE OF DEPOSITION OF
DEFENDANT GOOGLE, INC., was served via email, on the following:
Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Armands Chagnon
Senior Paralegal

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