1774596

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ECOFACTOR, INC.,

Plaintiff, 

v. 

GOOGLE LLC, 

Defendant. 

Civil Action No. 6:20-cv-00075 (ADA)

DEFENDANT GOOGLE LLC’S REPLY IN SUPPORT OF MOTION TO EXCLUDE 

EXPERT TESTIMONY OF DAVID KENNEDY

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TABLE OF CONTENTS

Page

I. INTRODUCTION...............................................................................................................1

II. ARGUMENT.......................................................................................................................2

A. Mr. Kennedy’s opinion has no methodology tying the lump sum settlement 

amounts to a per-unit royalty rate of $5.16. ............................................................2

1. EcoFactor cannot rely upon calculations “not in the record” to 

bolster Mr. Kennedy’s unsupported opinion. ..............................................2

2. Even if calculations existed outside “the record,” their existence 

would not absolve Mr. Kennedy from supporting his own opinion.............4

B. Mr. Kennedy’s opinion that $5.16 is a reasonable per-unit royalty rate is 

fundamentally unsupported by the evidence. ..........................................................6

C. Mr. Kennedy performed no analysis of economic comparability. ........................10

III. CONCLUSION .................................................................................................................10

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Baltimore Aircoil Co. v. SPX Cooling Techs. Inc.,

2016 WL 4426681 (D. Md. Aug. 22, 2016)..............................................................................5

Bank of N.Y. Mellon Tr. Co., Nat’l Ass’n v. Solstice ABS CBO II, Ltd.,

910 F. Supp. 2d 629 (S.D.N.Y. 2012) .......................................................................................7

In re ConAgra Foods, Inc.,

302 F.R.D. 537 (C.D. Cal. 2014)...............................................................................................4

CSIRO v. Cisco Sys, Inc.,

809 F.3d 1295 (Fed. Cir. 2015) ...............................................................................................10

Doe 1 v. Baylor Univ.,

320 F.R.D. 430 (W.D. Tex. 2017).............................................................................................3

Info-Hold, Inc. v. Muzak,

2013 WL 4482442 (S.D. Ohio Aug. 20, 2013) .........................................................................8

MLC Intell. Prop., LLC v. Micron Tech., Inc.,

10 F.4th 1358 (Fed. Cir. 2021)..............................................................................................5, 6

In re MSTG, Inc.,

675 F.3d 1337 (Fed. Cir. 2012) .................................................................................................3

Omega Patents., LLC v. CalAmp Corp.,

13 F.4th 1361 (Fed. Cir. 2021)................................................................................................10

Pavo Sols. LLC v. Kingston Tech. Co., Inc.,

2019 WL 8138163 (C.D. Cal. Nov. 20, 2019) ..................................................................4, 5, 6

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I. INTRODUCTION

Mr. Kennedy based his reasonable royalty opinion on 

 Mr. Kennedy performed no calculations to show that rate was used to arrive 

at the to which the licensees agreed. In its Opposition, EcoFactor insinuates 

that calculations tying the licensees’ sales to the lump sum amounts were performed by “ ” 

but admits that any such calculations are “not in the record,” because they are purportedly 

privileged or protected “by court order.” Opp. at 11. But EcoFactor’s claim that calculations 

exist outside of the record cannot save Mr. Kennedy’s opinion. To the extent such unproduced 

calculations were actually performed, EcoFactor cannot simultaneously rely on them to bolster its 

expert’s opinion, while also shielding them from discovery. And in any event, Mr. Kennedy 

opined as to a reasonable royalty rate without having seen any such calculations or any underlying 

licensee sales data. Thus, whether calculations were performed by “ has no bearing on the 

fact that no reliable methodology underlies Mr. Kennedy’s opinion. 

Unable to explain Mr. Kennedy’s lack of methodology, EcoFactor attempts to recast 

Google’s motion as an evidentiary dispute. But Google does not argue that Mr. Kennedy simply 

mis-weighed particular evidence. Instead, Google argues that beyond Mr. Kennedy’s lack of a 

reliable methodology, his royalty rate opinion bears no relationship to the evidence, which Mr. 

Kennedy did not account for. Instead, in advancing a royalty rate of $5.16, Mr. Kennedy merely 

relies upon an email from EcoFactor’s trial counsel and testimony from EcoFactor’s CEO that 

does not support Mr. Kennedy’s opinion. 

. But such data

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would be necessary to calculate a per-unit royalty purportedly based upon “

.” Finally, EcoFactor has no response to the fact that Mr. Kennedy’s unyielding 

advance of a per-unit royalty rate of $5.16 fails to account for the fact that those agreements 

licensed EcoFactor’s entire patent portfolio. Because Mr. Kennedy’s opinion is unreliable and 

unsupported under Daubert and Rule 702, Google’s motion to exclude should be granted. 

II. ARGUMENT

A. Mr. Kennedy’s opinion has no methodology tying the lump sum settlement 

amounts to a per-unit royalty rate of $5.16.1

1. EcoFactor cannot rely upon calculations “not in the record” to bolster Mr. 

Kennedy’s unsupported opinion. 

Remarkably, EcoFactor claims in its Opposition that calculations supporting Mr. 

Kennedy’s damages opinion of $5.16 as a per-unit royalty rate exist, but that they “are not in the 

record.” Opp. at 11. According to EcoFactor, such calculations could not be provided to Google 

or Mr. Kennedy because they are “privileged work product or . . . restricted by court order.” Opp. 

at 11. EcoFactor’s reference to these purported, undisclosable calculations is contrary to the 

testimony of Mr. Kennedy and Mr. Habib, 

. Mr. Kennedy testified that 

, and that he did not “ ” whether EcoFactor 

or its counsel ever had “ ” from the licensees. Ex. 5, ECF 114-6, at 111:14-17. 

Mr. Habib testified that 

1 EcoFactor readily concedes that it cannot satisfy the “legal test” for $5.16 to be characterized as 

an “established” royalty rate, but nonetheless argues that Mr. Kennedy may use the term in a 

“plain-meaning sense.” Opp. at 8 n.2. This is a distinction without a difference. Having 

admitted that $5.16 is not an “established” royalty rate, there is no basis for Mr. Kennedy to opine 

that it is.

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Suppl. Porto Decl. Ex. 16 at 296:15-20; 297:16-25; Ex. 17 at 328:13-22, 331:21-24; 440:3-9.2 

Even assuming that EcoFactor’s counsel possesses the licensees’ past and future sales data 

or per-unit royalty calculations (as its Opposition implies), EcoFactor cannot now rely on that to 

prop up the opinion of its expert, after having failed to produce the information in response to 

Google’s motion to compel, and having confirmed EcoFactor had produced all information to 

support Mr. Kennedy’s opinion. Google’s motion sought all information related to calculations 

and sales data underlying the $5.16 per unit royalty rate. See Ex. 8, ECF 114-9. In filing its 

motion, Google sought to avoid the very scenario it now faces, in which EcoFactor refers to outof-record data and calculations that allegedly support its expert’s opinion, having failed to 

disclose those documents in discovery. Thus, even accepting EcoFactor’s specious claims that 

licensee sales data or calculations are privileged, work product, or could not be produced under 

the protections of a protective order, EcoFactor cannot now suggest that such out-of-record 

information insulates its expert’s opinion from scrutiny. See Doe 1 v. Baylor Univ., 320 F.R.D. 

430, 439 (W.D. Tex. 2017) (a party may not “use[] confidential information against his 

adversary” without “implicitly waiv[ing] its use protectively” as a “shield” under the privilege). 

“As a matter of fairness,” EcoFactor “cannot at one and the same time have its expert rely on 

information about the settlement negotiations and deny discovery as to those same negotiations.” 

In re MSTG, Inc., 675 F.3d 1337, 1348 (Fed. Cir. 2012) (refusing to recognize settlement 

negotiation privilege). Given EcoFactor’s decision not to produce allegedly existing licensee 

2

there is nothing in the record to support this and such information has never been 

produced. 

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sales data or calculations in the face of this Court’s Order requiring it do so, it cannot now claim 

those calculations would have supported Mr. Kennedy’s opinion. 

2. Even if calculations existed outside “the record,” their existence would not 

absolve Mr. Kennedy from supporting his own opinion. 

Even if EcoFactor could show that calculations existed outside “the record,” Mr. Kennedy 

would be no less obligated to substantiate as to a per-unit royalty rate of 

$5.16. See In re ConAgra Foods, Inc., 302 F.R.D. 537, 556 (C.D. Cal. 2014) (“[A]n expert can 

appropriately rely on the opinions of others” only where “other evidence supports his opinion and 

the record demonstrates that the expert conducted an independent evaluation.”). Mr. Kennedy 

performed no calculations whatsoever. Thus, his opinion is unreliable regardless of whether 

unidentified “others” performed calculations of which Mr. Kennedy was not aware. Instead of

explaining (or attempting to defend) Mr. Kennedy’s lack of analysis, EcoFactor misconstrues 

Google’s critique as rooted in the fact that the licenses “are for a lump sum.” Opp. at 12. But as 

Google’s Motion makes clear, Mr. Kennedy’s opinion is unreliable not because he relies on lump 

sums, but because he has no method for tying those lump sums to a per-unit rate of $5.16. 

EcoFactor fails to distinguish any of the cases in Google’s Motion, all of which conclude 

that a damages expert relying upon lump sum agreements for a reasonable royalty rate must 

perform calculations tying those lump sums to the royalty rate. In Pavo Sols. LLC v. Kingston 

Tech. Co., Inc., 2019 WL 8138163, at *5 (C.D. Cal. Nov. 20, 2019), for example, Pavo’s expert’s 

opinion was excluded because she had “not demonstrated how the lump sums extracted from 

[the license] agreements could be accurately converted to a royalty rate.” EcoFactor has no 

response to the court’s analysis in Pavo, except to say that Pavo did not determine “that a lump 

sum agreement cannot be relied on,” which is undisputed. Opp. at 12. Incapable of 

distinguishing the relevant analysis, EcoFactor focuses on the Pavo court’s “later rulings,” which 

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are “heavily redacted” and relate to a different expert. Opp. at 13 (arguing “the more relevant 

holding in Pavo is its holding on the other expert’s opinion”). But just like the expert in Pavo,

Mr. Kennedy is “incapable” of tying the lump sum amounts to the royalty rate he proposes, 

because “the relevant sales numbers” are not in the record. Pavo, 2019 WL 8138163, at *5. 

Nor does EcoFactor distinguish Mr. Kennedy’s opinion from Baltimore Aircoil Co. v. SPX 

Cooling Techs. Inc., 2016 WL 4426681, at *25 (D. Md. Aug. 22, 2016), where the expert derived

a royalty rate from a lump sum using “[the defendant’s] projected sales,” rather than the 

licensee’s sales. Id. Like Mr. Kennedy, the expert had “no justification” for failing to tie the 

royalty rate to the lump sum, “besides lacking information on [the licensee’s] sales.” Id. 

EcoFactor argues that Mr. Kennedy’s complete lack of analysis was more reliable than had he 

attempted to perform a calculation, because any “calculation would have been speculative” given 

that the rate was allegedly “based on . . . [some] estimates of future sales.” Opp. at 12. But 

EcoFactor has no support for its argument that it is acceptable for an expert to forgo any analysis 

whatsoever because it may rely on an estimate of future sales, and the caselaw holds otherwise. 

Without any calculations, Mr. Kennedy’s “opinion offers mere speculation masquerading as 

quantitative analysis.” Baltimore Aircoil Co., 2016 WL 4426681, at *25.

Finally, EcoFactor fails to distinguish MLC Intell. Prop., LLC v. Micron Tech., Inc., 10 

F.4th 1358, 1368 (Fed. Cir. 2021), in which the court excluded an expert’s opinion because he 

“did not provide mathematical analysis to derive the [asserted] royalty rate from the lump-sum 

payments in the [relevant] licenses.” Like Mr. Kennedy, the expert in MLC hinged his opinion on

a single clause that referenced a running royalty rate. Id. at 1364. Though the court 

acknowledged that the expert’s testimony “may well have been proper had he merely asserted” 

that the clause was “a relevant consideration,” he “crossed the line when he stated that he 

understood that the .25% rate was applied . . . in calculating the lump-sum license payment.” Id.

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at 1368 (alterations adopted). EcoFactor offers no distinction between Mr. Kennedy’s opinion 

and the expert’s opinion in MLC, both of which lacked any “mathematical analysis” showing that 

“the lump-sum payments were, in fact, based on [a] royalty rate.” Id.3 Without a methodology to 

justify the extraction of a per-unit royalty rate from the three lump sum payments, Mr. Kennedy’s 

opinion amounts to little more than a “recitation of royalty numbers,” and it must be excluded. 

Pavo, 2019 WL 8138163, at *5. 

B. Mr. Kennedy’s opinion that $5.16 is a reasonable per-unit royalty rate is 

fundamentally unsupported by the evidence. 

Unable to justify Mr. Kennedy’s lack of methodology, EcoFactor attempts to recast

Google’s Motion as disputing the evidence upon which Mr. Kennedy relies. But Google’s 

criticism of Mr. Kennedy’s opinion is that he fails to account for any contradictory evidence, and 

thus that his opinion is “fundamentally unsupported,” which EcoFactor concedes warrants 

exclusion. Opp. at 8. Contrary to EcoFactor’s arguments, Mr. Kennedy’s opinion is not 

supported by the licenses themselves, Mr. Habib’s testimony, or the “negotiation documents.” 

First, contrary to EcoFactor’s characterization, 

. Opp. at 1. EcoFactor’s 

description is misleading at best, given that it fails to acknowledge the statement is contained 

within a “

. Opp. at 1. Mr. Kennedy does not address (or 

acknowledge) this limitation in his report. Nor does Mr. Kennedy acknowledge explicit 

3

 EcoFactor attempts to equate Mr. Kennedy’s reliance on lump sums to support a per-unit royalty 

with Google’s damages expert’s reliance on lump sum agreements. Opp. at 11. But unlike Mr. 

Kennedy, 

 See Suppl. Porto Decl. Ex. 18 (Schoettelkotte Rpt.) ¶¶ 143, 147, 153. There was 

thus no need for Google to tie the lump sum amounts to a reasonable royalty rate via a 

calculation; the total amounts were clear from the face of the licenses and did not depend on any 

claim as to what those lump sum amounts represent. 

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statements evidencing 

. 

For example, Mr. Kennedy makes no mention in his report of the statement in the 

,” nor does he acknowledge the statements in the 

.” See Ex. 2, ECF 114-3; Ex. 3, ECF-114-4 (emphasis added). 

In its Opposition, EcoFactor attempts to perform Mr. Kennedy’s analysis for him, by 

explaining at length that statement should be discounted because did not 

disagree that the $5.16 was applied as a per-unit reasonable royalty, and making similar 

arguments related to the license. See Opp. at 10; see id. n.5. But EcoFactor offers no 

explanation for the fact that Mr. Kennedy’s report fails to even acknowledge the terms of the 

 and licenses, and EcoFactor cannot substitute the arguments of its counsel for 

its expert’s silence. EcoFactor’s post hoc explanations (without citation to Mr. Kennedy’s report) 

are themselves unsupported and do not cure Mr. Kennedy’s unsupported opinion. See Opp. at 10; 

id. at 10 n.5 (EcoFactor counsel offering explanation of Daikin agreement without citation to any 

analysis by Mr. Kennedy). See Bank of N.Y. Mellon Tr. Co., Nat’l Ass’n v. Solstice ABS CBO II, 

Ltd., 910 F. Supp. 2d 629, 648 (S.D.N.Y. 2012) (excluding damages calculation based on expert’s 

“faulty assumption” that contradicted contractual terms).

Second, EcoFactor has no response to Google’s argument that Mr. Kennedy cannot rely on 

Mr. Habib to support a royalty rate of $5.16, because 

. Thus, Mr. Kennedy’s “discussion[s]” with 

Mr. Habib, during which he purportedly “obtain[ed] additional detail,” are meaningless. Opp. at 

9. Mr. Habib testified under oath that 

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. 

See Suppl. Porto Decl. Ex. 16, Ex. 17. Mr. Habib himself could not perform any calculation tying 

the lump sums to a per-unit royalty. Given Mr. Habib’s lack of personal knowledge, Mr. Habib, 

like Mr. Kennedy, is nothing more than a mouthpiece for the arguments of EcoFactor’s counsel. 

And again, EcoFactor fails to distinguish the cases upon which Google relies. In Info-Hold, Inc. 

v. Muzak, 2013 WL 4482442, at *5 (S.D. Ohio Aug. 20, 2013), which EcoFactor never addresses

in its Opposition, the court rejected the opinion of an expert who failed to “verify anything that 

Plaintiff’s CEO or Plaintiff’s counsel told him.” Id. As in Info-Hold, Mr. Kennedy’s testimony 

parroting unverified statements from EcoFactor’s CEO and its counsel is “more advocacy for 

Plaintiff than expert testimony,” and thus “his opinion is unreliable.” Id.

Third, EcoFactor suggests that “negotiation documents” provide Mr. Kennedy with

“significant evidence” that $5.16 is a reasonable per-unit royalty rate. Opp. at 9. But based on 

EcoFactor’s representations to Google and this Court, Mr. Kennedy cannot rely on any of these 

“negotiation documents” (and in fact only cites one such document in his report). During the 

hearing on Google’s motion to compel all evidence related to its purported calculations at $5.16 

per unit, EcoFactor’s counsel stated that its damages “expert is not relying on” emails from 

“current trial counsel.” Suppl. Porto Decl. Ex. 19 (Hr’ing Tr.) at 9:2510:1. EcoFactor’s counsel

explained that “the expert doesn’t need to rely on these at all” but instead, that Mr. Kennedy was 

“relying on these settlement agreements[.]” Id. at 10:57. Now, EcoFactor’s trial counsel’s 

attempt to bolster Mr. Kennedy’s opinion by reference to its own emails is inconsistent with its 

representation to the Court.4

 This Court has made clear that EcoFactor cannot rely upon these 

4 In another contradiction, EcoFactor’s Opposition states that Mr. Kennedy “is not relying on 

statements by counsel,” but then otherwise cites to counsel’s emails. Opp. at 14. 

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communications at trial. As the Court explained, “[c]ommunications between counsel and 

somebody else, unless you have prepared those up in a way that will get them into evidence, 

they’re not coming in.” Id. at 9:1820. Thus, EcoFactor’s attempt to recast Mr. Kennedy’s 

citation to one email as “significant evidence” must be rejected. Opp. at 9. 

In any event, the email thread cited in Mr. Kennedy’s report does not support his opinion.5 

In that email, 

. See Ex. 10, ECF 114-11. 

. See Ex. 2, ECF 114-3. Thus, even if EcoFactor could rely on emails from its 

own trial counsel—which this Court made clear that it cannot—Mr. Kennedy’s opinion remains 

fundamentally unsupported. As discussed in Google’s Motion, this email, among others, further 

demonstrates the unreliability of Mr. Kennedy’s opinions by showing that 

—a rate that was plucked out of nowhere and proposed by EcoFactor’s trial counsel. The

cases EcoFactor cites permitting damages experts to rely on negotiation documents to inform their 

reasonable royalty opinions are wholly irrelevant. The issue here is not, as a general matter, an 

expert’s reliance on negotiations or settlement “offers” to inform an opinion. Opp. at 9. Instead, 

Mr. Kennedy’s reliance on this negotiation email not only fails to support his royalty rate opinion 

but is improper because the only sponsoring witness for it is EcoFactor’s trial counsel.

6

 Thus 

5

 The Opposition also cites an email from EcoFactor’s counsel referencing a “rate card” that Mr. 

Kennedy never addressed. See Opp. n.4 (citing Exhibit 8 to Google’s Motion). EcoFactor has 

never produced this “rate card.” See Ex. 8, ECF 114-9. 

6

 As this Court has made clear, trial counsel testifying is “not going to happen.” See Hr’ing Tr. at 

8:14-21; see also ABA Rule 3.7 (“A lawyer shall not act as advocate at trial in which the lawyer 

is likely to be necessary witness....”); Texas Disciplinary Rules of Professional Conduct, Rule 

3.08 (“A lawyer shall not accept or continue employment as an advocate before a tribunal . . . if 

the lawyer knows or believes that the lawyer is or may be a witness”).

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CSIRO v. Cisco Sys, Inc., 809 F.3d 1295 (Fed. Cir. 2015), which permitted a damages 

methodology involving an unused rate card, is inapposite. 

C. Mr. Kennedy performed no analysis of economic comparability.

Finally, Mr. Kennedy is so committed to a per-unit royalty rate of $5.16 that he performed 

no analysis to show that the three settlement licenses were economically comparable to the 

license in the hypothetical negotiation; they are not. Most glaringly, EcoFactor cannot explain 

Mr. Kennedy’s failure to account for the fact that, although the hypothetical negotiation would 

have provided a license to only three patents-in-suit, the licenses used to support the alleged $5.16 

per unit royalty Instead of addressing this, EcoFactor 

focuses on its technical expert’s analysis, erroneously suggesting that this remedies Mr. 

Kennedy’s failure to address the economic comparability (or lack thereof) of the settlement 

agreements’ portfolio-wide licenses. See Opp. at 3-4, 19. EcoFactor also fails to distinguish 

Omega Patents., LLC v. CalAmp Corp., 13 F.4th 1361, 1379 (Fed. Cir. 2021), where, like Mr. 

Kennedy, the expert opined that the defendant “should pay the same rate no matter how many 

claims or . . . patents it infringes.” Id. Just like in Omega Patents, Mr. Kennedy fails to “account 

for [] distinguishing facts” in the allegedly comparable portfolio licenses. Id. Mr. Kennedy’s 

opinion that only the few patents “ ” in each settlement agreement had any value, 

Kennedy Rept. ¶ 347, cannot be reconciled with EcoFactor’s assertion of distinct sets of patents 

against Google (and other defendants) in the ITC and the Western District of Texas. EcoFactor’s 

own litigation conduct reveals that it sees value in the other patents within its portfolio, lest it 

wouldn’t expend resources enforcing them. Mr. Kennedy’s attribution of no value to the other 

patents covered by the settlement agreements does not satisfy Daubert. 

III. CONCLUSION

Google respectfully requests that Mr. Kennedy’s opinion be excluded in its entirety.

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Respectfully submitted, 

KEKER, VAN NEST & PETERS LLP

Dated: December 10, 2021

Shamita Etienne-Cummings 

(admitted to the Western District of Texas) 

Allen & Overy LLP

1101 New York Avenue, NW

Washington, DC 20005

Telephone: (202) 683-3810 

GoogleEcofactorWDTX@AllenOvery.com

Bijal V. Vakil

(admitted to the Western District of Texas) 

Eric Lancaster (admitted Pro Hac Vice) 

Allen & Overy LLP

530 Lytton Avenue, 2nd Floor 

Palo Alto, CA 94301

Telephone: (650) 388-1703 

GoogleEcofactorWDTX@AllenOvery.com

ROBERT A. VAN NEST

LEO L. LAM

EUGENE M. PAIGE

R. ADAM LAURIDSEN

JENNIFER A. HUBER

KRISTIN HUCEK

PATRICK E. MURRAY

ANNA PORTO

GREGORY WASHINGTON

633 Battery Street

San Francisco, CA 94111-1809

Telephone: 415 391 5400

Facsimile: 415 397 7188

econest-kvp@keker.com

POTTER MINTON

Michael E. Jones (TX Bar No. 10929400)

mikejones@potterminton.com

Patrick C. Clutter (TX Bar No. 24036374)

patrickclutter@potterminton.com

110 N. College, Suite 500

Tyler, Texas 75702 

Tel: 903-597-8311 

Fax: 903-593-0846 

Attorneys for Defendant GOOGLE LLC

By: Jennifer A. Huber with permission, 

 by Michael E. Jones

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