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Google's Argument Against Interest & Supplemental Damages: 10,000 Foot View

|Includes: Alphabet Inc. (GOOG), XSPA

Google's argument against pre-judgment interest & supplemental damages is in. What can we glean from it? I think it is safe to say there are no surpirses. As I surmised in an earlier post Google is seeking to make the jury's calculations precedent for everything that happens from here. I might add at the same time they will no doubt be motioning the judge to enter a judgment notwithstanding the verdict which would essentially overrule the jury and find that the defendants did not infringe. So we love the jury and their calculations until we can obliterate them is Google's mantra.

So on the pre-judgment interest Google argues (and cites Supreme Court and Eastern District of Virginia Court rulings to back it up) that it is inappropriate in view of the laches decision. I'm guessing they will win this motion. Google argues the appropriateness of T-Bill rate v. Prime rate of interest but I don't think the rate of interest is the key to this. People can argue this which is fine, I just think VRNG loses the pre-judgment interest battle.

So on to a bigger battle (much bigger), the supplemental damages battle. Google of course argues against supplemental damages and cites the verdict form to make its argument: "what sum of money, if any, if paid now in cash, would reasonably compensate I/P Engine for any of defendants['] past infringement?" Google argues that the amount the jury awarded for each defendant was it and it covers everything right up until the verdict. Ok, this is plausible but there is a problem with this logic in that the jury did not have a royalty base for this time frame so it can be argued, and has, that the jury could not consider it and therefore was not factored into their decision. Since Google essentially punted on handing the updated revenue information over, it allows Vringo to frame them once again in that pretrial, dirty tactics, light. If you are a pessimist you can argue that Judge Jackson won't add supplemental damages and will just stick with the argument that the jury gave all the money it intended to give up until the verdict. Since JJ is a bit unpredictable there is no way to know which way he'll go.

Now we have the Google magical apportionment theory to consider. They argue that since the award from Google was dramatically lower than the Plaintiff sought, when the math is considered, instead of the 20.9% apportionment number that Dr. Becker testified was appropriate, the apportionment should be 2.8%. Since it reinforces their own simplistic calculations, Google wouldn't dare compare this apportionment to the apportionment accorded the other defendant's which was...wait for it...wait for it...20.9%.

So even if Google is able to convince the judge there should be no pre-judgment interest (and I'm guessing they will) and no supplemental damages (it's possible) they won't convince Judge Jackson that he did not see what he saw in that courtroom over two weeks time. Google is previewing its argument that the apportionment that should be considered in establishing a forward-on royalty base is 2.8% and not 20.9%. They will not win this argument because the evidence and even the jury's calculations when considering all defendants does not support it. So here is a prediction. Expect to see a motion to correct the jury verdict calculations with respect to Google. That motion can come at any time, it may come in the next few days, it may come after a ruling from the Judge on the motion on the table, but it's coming. Unless of course we see a very near-term settlement which despite the ferocity of Google's defense (who would expect any less) is always possible. If we don't see some resolution shortly I also expect we will see a flurry of lawsuits aimed at Google's Search customers.

Disclosure: I am long VRNG.