Last month, Touchstream Technologies, Inc. filed its first 2024 complaint, against Yamaha in the Eastern District of Texas; now, the plaintiff has hit VIZIO (8:24-cv-02328). Two patents (one familiar to the campaign, one new) generally related to triggering the remote playback of content are asserted, with infringement allegations focused on the provision of VIZIO's WatchFree+ app "and associated SmartCast compatible devices, such as TVs, speakers, and sound bars". Elsewhere in this campaign, Western District of Texas Judge Alan D. Albright, while having denied other posttrial motions in a Touchstream case against Alphabet (Google), which produced a $340M jury verdict (and judgment) for the plaintiff, has yet to resolve a posttrial dispute over whether that award should be considered a one-time lump sum (Google's position) or merely a royalty for an articulated period of past infringement (Touchstream's). The court indicated in mid-January 2024 that it would "get an order out . . . pretty quickly".
Touchstream, which represents that it does business as "Shodogg", asserted three patents from a family of 11 against Yamaha, accusing VIZIO of infringing one of those three (11,468,118), together with a second from the same family (11,860,938). The family has issue dates ranging from January 2013 through June 2024, with an earliest estimated priority date in April 2011 and prosecution of related applications continuing before the USPTO. David Strober, the sole named inventor of the patents, indicates on social media that he was the founder of Shodogg, staying with the company (formed in Delaware in March 2011) through February 2016 before moving on to movMobile (through 2019) and then Pearson (a "learning company"), in a "solutions manager" role.
Touchstream litigation against additional defendants Altice, Charter Communications, and Comcast remains active. The plaintiff originally asserted one patent (8,356,251) against these three cable providers, with two others tried with claims from the '251 patent against Google (8,782,528; 8,904,289). Touchstream added two other patents (11,048,751; 11,086,934) in May 2023 amended complaints against the cable companies. The Eastern District of Texas cases against Charter and Comcast are currently on Chief Judge Rodney Gilstrap's December trial calendar; after a transfer to the Eastern District of New York, Magistrate Judge Steven I. Locke granted, in a September 18, 2024 order, Altice's motion to stay that suit pending resolution of related inter partes review (IPR) proceedings.
Contested in West Texas, though, after Judge Albright entered judgment in Touchstream's favor based on the summer 2023 verdict, is what kind of damages that jury intended to award. Touchstream asked for $941,419,212; Google's damages expert put the figure, for any infringement found, at $8.98M. In response to the question on the verdict form, "What is the total amount of damages you find for Google's infringement of the Asserted Patent(s)?", the jury responded $338,760,000. The parties did not submit a question that asked the jury to characterize its response as a "fully-paid-up lump sum" or as a running royalty for a limited period of past infringement.
Touchstream moved to amend the judgment in light of this alleged ambiguity, asking Judge Albright to divide the award by its ask to arrive at an "implied royalty rate" of 35.98%, to be applied as a "post-verdict adjustment" to the rates that Touchstream's damages expert had suggested at trial: $15.36 per Chromecast Dongle, $7.68 per Google Chromecast-enabled device, and $3.84 per "Third-Party Chromecast-Enabled Device". Touchstream also asked the court to bump the rates to be applied to post-verdict sales up by 50% to arrive at "increased ongoing royalty rates (per activated device): $8.30, $4.14, and $2.07, respectively. All this adjustment could have the award in any amended judgment soar past $1B.
Google opposed Touchstream's motion to amend the judgment by arguing, among other things, that the jury's award should be viewed as a "fully-paid-up lump sum", arguing that it "bears no resemblance to a running royalty like Touchstream sought" and cannot possibly have resulted from the multiplication of suggested/adopted rates against royalty bases. In the alternative, to its other posttrial motions (contesting the jury's infringement and validity findings) and to this characterization of the damages award, Google argues against Touchstream's suggested implied royalty rates, as adjusted upward post-verdict, contending that "Touchstream's multiplier has no sound basis and should be rejected out of hand".
Judge Albright held a hearing on the parties' posttrial motions in January 2024. There, he addressed in detail only the parties' positions as to damages award adjustment, otherwise ruling "So—and I'm going to deny those other motions" in response to counsel for Google's request "for a ruling on our other pending motions, the renewed JMOL [i.e., renewed motion for judgment as a matter of law]". He further indicated, on January 16, 2024, "We'll get an order out I think pretty quickly with regard to the issues that we've taken up". No order has issued, perhaps given sticking points highlighted at that hearing, including an apparent incredulity that the court has the discretion to resolve such a glaring dispute in the first place.
Midway through, the court asked a question "at peril since we're on the record": "What is to stop us—let me suggest there's an option that y'all haven't mentioned, but as trial lawyers you'll know, which is just that this is the number that they came up with so that the seven people could all get out of the jury box". In providing context for this "third option", the court indicated that it did not need help arriving at appropriate royalty rates going forward, were it to amend the judgment as Touchstream suggested, providing along the way insight into its discussion with the jury about the case, as well as its discussion with clerks in preparation for the hearing:
You know, I mean, we can go back and look and say there were three products and we divide it by a number and we come up with this and that's how it came up or—and we weren't in there and I talked to the jury afterwards but I can't ask them stuff like this. I ask them who they liked, you know, they liked all of you. They thought you were great.
But let's say that, in my head—and I know we actually spent a fair amount of time this morning going through all this getting me ready because I, at first, was a little surprised that—at the power and discretion I had to get to do this. I thought, wow, this really can't be my problem. I mean, what do I know? And whatever I do, the Federal Circuit will tell me I'm wrong. So you know, why is—what should we do? But my clerks and I are convinced that I do—and y'all have in your papers, as fate would have it, I do have very broad discretion.
Let's say as a—as one of the things that is in my head as I'm exercising that discretion, it is that this is what the jury came up with as the number to—we didn't ask them for—we did not ask them for a royalty rate. I probably will do that going forward, or at least try and think up something to do, but how—whose side does it break in favor of, and I'll hear from both of you, if I think that this was the number that the jury thought was right to get out of the jury room, without them seriously considering whether or not—they didn't seriously consider whether or not it was a reasonable royalty or a lump sum, but it was the number that they thought was right and that they awarded?
Judge Albright later challenged Touchstream's counsel by first asking, "And the number that I would award, were I to go along with what you're suggesting I do, would actually result in a higher number than what they were willing to agree to, correct?" The court then expounded further:
But my point is more that if I'm trying to divine, to the extent I can, the intent of this jury in coming up with the award they came up with, if they rejected the number that you all gave them that was based on a running royalty times the sales, why would I believe that they would give a number that is even equal to that—[Google's counsel's] point is that, you know, they would be shocked to learn that they gave an award that would result—of $338 million, that's actually an award of a lot more. 500—let's say the total's 500. It doesn't matter what it is, but its a lot more.
Why would that be consistent with what the jury did here when they rejected your higher number?
Over the course of the argument, these questions from the court posed, the parties rearticulated their respective positions, leading the court to make its pronouncements at the end of the hearing: that Google's renewed motions for judgment as a matter of law are rejected and that an order on the damages award would be docketed "pretty quickly".
As noted, the Charter and Comcast cases are set to begin before Judge Gilstrap in early December, with multiple motions left to be decided a final pretrial conference, including competing motions concerning the patent eligibility of Touchstream's claims. To review the IPR leg of this campaign, involving 14 petitions filed against a subset of the nine patents-in-suit, as well as appeals from Google from several of those proceedings, see here. The VIZIO case has yet to be assigned to a judge; there, Touchstream has identified no nonparties with a pecuniary interest in the outcome of the litigation. 10/25, Central District of California.
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