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

Filing 443

Opposition to 301 MOTION in Limine #2 to Exclude Evidence of Entire Market Value of Accused Products and of Defendants' Size, Wealth and Overall Revenues filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sherwood, Jeffrey)

Exhibit 3 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
1/P ENGINE, INC.
Plaintiff,

Civil Action No. 2:1] -cv-512

V.

AOL, INC., et al.,
Defendants.

DEFENDANTS' MEMORANDUM IN SUPPORT OF THEIR MOTION TO EXCLUDE
THE TESTIMONY OF STEPHEN L. BECKER

3.

The Overture Licensees Were Not Situated Comparably to Google

Dr. Becker has conceded that the licensees in the agreements he relied on — Marchex,
i

nc.,111111111=1111111111 , and Interchange Corp. — were all in radically different negotiating

positions against Overture than Google would have been in a hypothetical negotiation with
Lycos. Yet, Dr. Becker did not account for these differences when he relied on the Overture
, Interchange, and Marchex were

agreements. For example, Dr. Becker concedes

"much smaller compan[iesr than Google. (O'Brien Dec., Ex. 2, 85:5-21.) Dr. Becker testified
that Google's size would have made it "a more attractive licensee to Lycos than Marchex
represented to Overture" and that this "would have given it an edge in the negotiation." (Id.,
94:2-6; see also id., 94:14-17 (Goo& would also have been a more attractive licensee than

1111 .) Dr. Becker further agreed that

, Interchange, and Marchex were enjoying much

slower growth than Google. (ict, 95:3-11.) Indeed, Google was a global technology leader in
the search business, unlike

, Interchange, or Marchex. (Id., 1 I 8:15-119:1.) Becker's failure

to account for these differences in negotiating position further renders his opinion unreliable.
B.

Dr. Becker Selectively Ignores Every Real-World Transaction Involving the
Patents in Suit

Rights in the asserted patents have been traded in arms length transactions several times.
These historic, real-world transactions provide compelling evidence of the value that Google and
Lycos would have placed on a license to the patents in suit. See Georgia-Pacific, 318 F. Supp. at
1120. Indeed, the Federal Circuit has found it "particularly troubling" when a plaintiff's damages
expert eschews actual licenses to the patents in suit and instead relies on "extremely high rates"
in unrelated licenses. ResQNet, 594 F.3d at 870. Here, there are... agreements that
provide objective indications that Dr. Becker's opinion vastly overstates the value
of I/P Engine's patents.
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