United States Court of Appeals 

for the Federal Circuit ______________________ 

ECOFACTOR, INC.,

Plaintiff-Appellee

v.

GOOGLE LLC,

Defendant-Appellant

______________________ 

2023-1101

______________________ 

Appeal from the United States District Court for the 

Western District of Texas in No. 6:20-cv-00075-ADA, Judge 

Alan D. Albright.

______________________ 

ON PETITION FOR REHEARING EN BANC

______________________ 

ROBERT A. VAN NEST, Keker, Van Nest & Peters LLP, 

San Francisco, CA, filed a petition for rehearing en banc for 

Google LLC. Also represented by STEPHANIE JILL GOLDBERG, KRISTIN ELIZABETH HUCEK, LEO L. LAM, ROBERT 

ADAM LAURIDSEN, EUGENE M. PAIGE. 

 

 REZA MIRZAIE, Russ August & Kabat, Los Angeles, CA, 

filed a response to the petition for EcoFactor, Inc. Also represented by KRISTOPHER DAVIS, MARC A. FENSTER, MINNA 

JAY, BRIAN DAVID LEDAHL, JAMES PICKENS. 

 ______________________ 

Case: 23-1101 Document: 76 Page: 1 Filed: 09/25/2024
2 ECOFACTOR, INC. v. GOOGLE LLC

Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA, 

TARANTO, CHEN, HUGHES, STOLL, and STARK, Circuit 

Judges.1

PER CURIAM. 

O R D E R

Google LLC (Google) filed a petition for rehearing en

banc. A response to the petition was invited by the court 

and filed by EcoFactor, Inc. (EcoFactor). The court also accepted amicus briefs filed by US*Made, Garmin International, Inc., Red Hat, Inc., SAP America, Inc., SAS 

Institute, Inc., Symmetry, LLC, Tesla, Inc., Vizio, Inc., 

Dell, Inc., Intel Corporation, Cisco Systems, Inc., Apple 

Inc., and Lawyers for Civil Justice.

The petition and response were referred to the circuit 

judges in regular active service. A poll was requested and 

taken, and the court decided that the appeal warrants en 

banc consideration.

Accordingly, 

 IT IS ORDERED THAT: 

(1) The petition for rehearing en banc is granted.

(2) The panel opinion in EcoFactor, Inc. v. Google LLC, 

No. 2023-1101, 104 F.4th 243 (Fed. Cir. 2024), is vacated, and the appeal is reinstated.

(3) The parties are requested to file new briefs, which 

shall be limited to addressing the district court’s adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 

579 (1993), in its allowance of testimony from EcoFactor’s damages expert assigning a per-unit 

1 Circuit Judge Newman and Circuit Judge Cunningham did not participate.

Case: 23-1101 Document: 76 Page: 2 Filed: 09/25/2024
ECOFACTOR, INC. v. GOOGLE LLC 3

royalty rate to the three licenses in evidence in this 

case. 

(4) Google’s en banc opening brief is due 45 days from 

the date of this order. EcoFactor’s en banc response 

is due within 45 days of Google’s en banc opening 

brief, and Google’s reply brief within 30 days of the 

response brief. The parties may file a supplemental 

appendix within 7 days after service of the reply 

brief. The court requires 30 paper copies of all briefs 

and appendices provided by the filer within 5 business days from the date of electronic filing of the 

document. The parties’ briefs must comply with 

Fed. Cir. R. 32(b)(1).

(5) Any briefs of amici curiae may be filed without consent and leave of the court. Any amicus brief supporting Google’s position or supporting neither 

position must be filed within 14 days after service 

of Google’s en banc opening brief. Any amicus brief 

supporting EcoFactor’s position must be filed 

within 14 days after service of EcoFactor’s response 

brief. Amicus briefs must comply with Fed. Cir. R. 

29(b).

(6) Oral argument will be held at a time and date to be 

announced later.

 

September 25, 2024

 Date

FOR THE COURT

 

 

Case: 23-1101 Document: 76 Page: 3 Filed: 09/25/2024