Judge Dyk Denies Motion for Relief from Judgment

October 5, 2016

Publication| Intellectual Property

In ART+COM InnovationPool GMBH v. Google, Inc., C.A. No. 14-217-TBD (D. Del. Sept. 9, 2016), Federal Circuit Judge Dyk, sitting by designation, denied the plaintiff’s motion for relief from judgment. This motion arose following a jury verdict that Google did not infringe any of the asserted claims of the patent in-suit.

In support of its motion, plaintiff ACI focused on testimony given by Stephen Lau, a consultant retained by Google prior to litigation. Before trial, the Court permitted deposition testimony of Lau. ACI had access to the consulting agreement with Lau, invoices, and records of payment. The consulting agreement stated that Lau would only be compensated for his time as a consultant and would not be paid for time spent testifying. The Court also gave ACI the opportunity to cross-examine Lau at trial about his consulting agreement with Google.

The Court held that ACI did not show a basis for Rule 60(b) relief. In its motion, ACI made three arguments, each of which was rejected. First, it argued that Google’s consulting agreement with Lau was per se improper. Judge Dyk referred to precedent which stated that witnesses can be compensated for consulting work but not for testimony. The Court found there was no evidence that showed Lau was paid for his testimony, and Google’s invoices demonstrated that he was not paid during trial.

Second, ACI argued that Lau’s compensation was for his witness testimony because his consulting compensation was unreasonably high or disproportionate to the time actually spent on the litigation. The Court responded that the hourly rate and total amount of Lau’s compensation was not unreasonable because consultants are typically paid more than their salary due to the type of services they provide.

Finally, ACI argued that Lau gave false testimony during trial. The Court held that ACI did not provide sufficient evidence to show that Lau gave false testimony. Additionally, Judge Dyk stated that ACI had the ability to address this issue, as well as the issue of Lau’s compensation, on cross-examination.

Key Points:  Courts will look at the nature of the witness’s experience and the nature of the litigation in evaluating whether the witness’s compensation is unreasonably high.

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