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

Filing 968

NOTICE by I/P Engine, Inc. re 960 Memorandum Opinion,, of Plaintiff's Calculation of Supplemental Damages, Prejudgment Interest and Post-Judgment Interest (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

I/P ENGINE, INC.,
Plaintiff,
v.
AOL, INC. et al.,
Defendants.

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REDACTED

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

PLAINTIFF I/P ENGINE, INC.’S NOTICE OF CALCULATION OF SUPPLEMENTAL
DAMAGES, PREJUDGMENT INTEREST AND POST-JUDGMENT INTEREST
In its August 1, 2013 Order (D.I. 960), this Court held “that I/P Engine is entitled to
supplemental damages for October 1, 2012 to November 20, 2012,” “prejudgment interest …
from September 15, 2011 to November 20, 2012,” and “post-judgment interest for Defendants’
infringement.” Order at 7. In accordance with this Court’s Order, I/P Engine provides herein its
calculation of supplemental damages, the amount Defendants owe in prejudgment interest, and
the amount Defendants owe in post-judgment interest.
I.

SUPPLEMENTAL DAMAGES
Supplemental damages are calculated in accordance with the damages awarded in the

jury verdict. Order at 2. In its verdict, the jury awarded damages in the form of a running
royalty, and found that the royalty rate should be 3.5%. D.I. 789 at 11. The starting point for
calculating supplemental damages is “an accounting of revenue for the accused products through
the date of judgment, November 20, 2012.” Order at 6.
On August 16, 2013, Defendants provided I/P Engine with revenues for the accused
systems for the time period of October 1, 2012 through November 20, 2012 totaling

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The second step is to app01iion the total revenues to create an app01iioned
royalty base. In its Order of August 13, 2013, this Comi ordered an app01iionment factor of
20.9% for post-judgment royalties, noting that this Court would notre-litigate this issue. D.I.
963 at 6. That same 20.9% apportionment factor also applies to supplemental damages.
Accordingly, to determine the app01iioned royalty base, the 20.9% app01iionment factor is
applied to the total revenues

The apportioned royalty base is

The third step is to apply the royalty rate to the app01iioned royalty base. The jmy found
a 3.5% royalty rate. D.I. 789 at 11. Applying that 3.5% royalty rate to the apportioned royalty
base, supplemental damages are $16,792,982 (3.5%

). See Exhibit A for liP

Engine's supplemental damages calculations (an allocation by Defendant is provided below).

II.

PREJUDGMENT INTEREST
In its Order, this Comi identified the parameters for calculating prejudgment interest

stating that the "use of the prime rate, compmmded qmuierly, is proper" and that it should nm
"from the date of infringement, as limited by the Comi' s laches' mling, September 15, 2011 , to
the date of judgment, November 20, 2012." Order at 6. In accordance with those parameters,
prejudgment interest based upon the total compensat01y damages (the award set f01ih in Verdict
Fonn III.C. plus the supplemental damages award calculated above) is $536,708. See Exhibit B
for liP Engine's prejudgment interest calculations (an allocation by Defendant is provided
below).

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Defendant
Google
AOL
Gannett
lAC
Target

III.

Total Dama2es
$15,800,000
$7,943,000
$4,322
$6,650,000
$98,833

Interest
$278,067
$139,790
$76
$117,035
$1,739

POST -JUDGMENT INTEREST
This Comi also fmmd that post-judgment interest should be "calculated in the manner set

f01ih in 28 U.S.C. § 1961 (a)" and 1un "from the date of the ently of the judgment lmtil payment
is made in full." Order at 7. In accordance with that, post-judgment interest based upon the total
compensat01y damages (the award set f01ih in Verdict F01m III. C. plus the supplemental
damages award calculated above) and the prejudgment interest calculated above to date is
$60,811. See Exhibit C for liP Engine's post-judgment interest calculations. Post-judgment
interest accm es in the amount of approximately $222.75/day. Because the date of Defendants'
satisfaction of the judgment is not yet known, VP Engine will provide an updated post-judgment
interest amount upon Defendants ' satisfaction of the judgment.

Dated: August 21, 2013

By: Is/ Jeffrey K. She1wood
Donald C. Schultz (Virginia Bar No. 30531)
W. Ryan Snow (Virginia Bar No. 47423)
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone:
[phone]
Facsimile:
[phone]
Jeffrey K. She1wood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
Charles J. Monterio, Jr.
Jonathan Falkler
DICKSTEIN SHAPIRO LLP
1825 Eye Sti·eet, NW
Washington, DC 20006
Telephone:
[phone]
Facsimile:
[phone]
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Dawn Rudenko Albert
DICKSTEIN SHAPIRO LLP
1633 Broadway
New York, NY 10019
Telephone:
[phone]
Facsimile:
[phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2013, the foregoing PLAINTIFF I/P ENGINE,
INC.’S NOTICE OF CALCULATION OF SUPPLEMENTAL DAMAGES,
PREJUDGMENT INTEREST AND POST-JUDGMENT INTEREST, was served via the
Court’s CM/ECF system 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/ Jeffrey K. Sherwood

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