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

Filing 902

Opposition to 900 MOTION for Leave to File Notice of Supplemental Authority 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.
Civil Action No. 2:11-cv-512

Plaintiff,
v.
AOL, INC., et al.,
Defendants.

OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE
TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY
Defendants AOL Inc., Google Inc., IAC Search & Media, Inc., Gannett Co., Inc., and
Target Corp. (collectively “Defendants”) respectfully request that the Court deny Plaintiff I/P
Engine, Inc.’s (“I/P Engine”) Motion for Leave to File Notice of Supplemental Authority.
Although Defendants would not oppose the filing of supplemental authority that actually would
be relevant to the Court’s determination of the issues, I/P Engine’s proffered “supplemental
authority” is not relevant.
I/P Engine argues VirnetX Inc. v. Cisco Systems, Inc., No. 6:10-cv-417, D.N. 732 (E.D.
Tex. Feb. 26, 2013), is relevant because the court in that case rejected the defendant’s argument
that the plaintiff failed to present sufficient evidence of a royalty base. I/P Engine states “[a]s in
this case, the defendant in VirnetX ‘failed to advance a credible alternative’ at trial.” (D.N. 901,
2.) The court in VirnetX, however, did not deny the defendant’s motion merely because the
defendant did not provide an alternative base as I/P Engine suggests. Indeed, the defendant in
that case did provide some evidence in relation to a royalty base. Rather, the court found that the
plaintiff presented sufficient evidence of a royalty base, and therefore the jury’s award was
supported by the evidence. The court also found that what defendant presented for a base was

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not “credible.” No. 6:10-cv-417, D.N. 732, 24-25. In doing so, however, the court did not
eliminate the requirement that the plaintiff provide legally sufficient evidence of a royalty base
or suggest that anything the defendant did in that case altered that burden.
Here, I/P Engine did not present evidence of a royalty base. Thus, whether Defendants
introduced an alternative damages base is irrelevant, and VirnetX says nothing to the contrary.
This is just another attempt by I/P Engine to shift its burden of proof on damages to Defendants.
(See, e.g., D.N. 894, 5, 15-16 (discussing previous arguments by I/P Engine attempting to shift
the burden of proof on damages).)
For the foregoing reasons, I/P Engine’s Motion should be denied.

DATED: March 11, 2013

/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]
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.

/s/ Stephen E. Noona
Stephen E. Noona
01980.51928/5196903.1

2

Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
Facsimile: [phone]
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
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 March 11, 2013, 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 for 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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