Express Mobile, Inc. v. GoDaddy.com, LLC

680 F.Supp.3d 517

EXPRESS MOBILE, INC., Plaintiff, v. GODADDY.COM, LLC, Defendant.

Civil Action No. 1:19-cv-01937-MFK

United States District Court, D. Delaware

Signed July 5, 2023

Timothy Devlin, Devlin Law Firm LLC, Wilmington, DE, Christopher A. Suarez, Pro Hac Vice, Washington, DC, Daniel F. Gelwicks, Pro Hac Vice, James R. Nuttall, Pro Hac Vice, John L. Abramic, Pro Hac Vice, Michael Dockterman, Pro Hac Vice, Robert F. Kappers, Pro Hac Vice, Chicago, IL, Tron Y. Fu, Pro Hac Vice, Katherine H. Tellez, Pro Hac Vice, for Plaintiff.

Beth Moskow-Schnoll, Brian S.S. Auerbach, Brittany M. Giusini, Ballard Spahr LLP, Wilmington, DE, Brian W. LaCorte, Pro Hac Vice, Jonathon A. Talcott, Pro Hac Vice, Phoenix, AZ, Caryn C. BorgBreen, Pro Hac Vice, Philadelphia, PA, Kyle A. Ceuninck, Pro Hac Vice, Atlanta, GA, Shaton C. Menzie, Pro Hac Vice, Chicago, IL, Andrew M. Hensley, Pro Hac Vice, for Defendant.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Express Mobile, Inc. sued GoDaddy.com, LLC alleging that two of GoDaddy's products—Website Builder (WSB) and Managed WordPress (MWP)—willfully infringe numerous claims of certain patents owned by Express Mobile that are directed to tools for displaying content on mobile devices.¹ Express Mobile's claims went to a jury trial in late February 2023. In addition to asserting a defense of non-infringement, GoDaddy contended that Express Mobile's patents were invalid. The jury found in GoDaddy's favor on the question of infringement and willfulness but found in favor of Express Mobile on the question of invalidity. Because it found in favor of GoDaddy on the question of infringement, the jury awarded Express Mobile no damages.

After the close of GoDaddy's case in chief, Express Mobile moved for judgment as a matter of law under Federal Rule of Civil Procedure Rule 50(a). The Court took the motion under advisement. Express Mobile has now renewed its Rule 50 motion and has also moved for a new trial under Federal Rule of Civil Procedure 59(a). For the reasons set forth below, the Court denies both motions.

Background

The Court assumes familiarity with this case's factual and procedural background, which the Court has discussed in prior written opinions. The following background is relevant to the post-trial motions and largely is taken from the Court's summary judgment decision.

A. The asserted patents

The asserted patents relate to two concepts that allow web designers to integrate third-party web services into their websites. The patents disclose an authoring tool that generates two sets of code, a device-independent application and a device-specific player. Second, the patents disclose an authoring tool that allows for integration of web services into the application and player.

B. The accused products

Two GoDaddy products are at issue in this case. WSB is a browser-based website creator, designed to allow a user with little or no website design experience to quickly create and publish a website. MWP, in contrast, targets more advanced users. It comprises a set of custom functionalities that GoDaddy has added to WordPress, an open-source (i.e. free) platform for creating websites. Both WSB and MWP allow for incorporation of features into a user's website, such as YouTube videos or embedded Twitter feeds. GoDaddy provides several free themes for use in designing a website, but users can also buy third-party themes for use with the MWP platform.

C. Claim construction

Two orders have previously been issued in this case construing certain disputed claim terms. Express Mobile, Inc. v. GoDaddy.com, LLC, No. 19-1937-RGA, 2021 WL 2209868 (D. Del. Jun. 1, 2021), and Express Mobile, Inc. v. GoDaddy.com, LLC, No. 19-1937-MFK, Mem. Op. and Order (dkt. no. 261) (D. Del. Aug. 8, 2022). The claim terms relevant to the issues decided at trial were construed as follows:

registry

"a database that is used for computing functionality"

player

"device-specific code which contains instructions of a device and which is separate from the Application"

device-dependent code

code that is specific to the operating system, programming language, or platform of a device

D. Evidence at trial

As relevant to the contentions Express Mobile has made in its motions, the following witnesses testified during the trial, either live or via deposition:

• Dr. Kevin Almeroth, Express Mobile's infringement expert

• Peter Kent, GoDaddy's infringement expert

• Steven Rempell, CEO of Express Mobile

• Ken Brown, Inventor of the asserted patents

• Franklin Jarrett, GoDaddy engineer

• Aaron Silvas, GoDaddy engineer

On a high level, GoDaddy argued that Express Mobile made a bad bet when it filed its patent applications back in 2008, as the patents are directed to device-specific players that have since been rendered obsolete. GoDaddy argued that, by contrast, its WSB and MWP products operate not via players but on browsers and that they use programming language such as JavaScript that is completely device-independent, which GoDaddy argued is necessary in the ever-evolving technological space of smartphones.

The asserted patents recite nineteen claim elements. Kent testified, and GoDaddy argued based on his testimony, that neither WSB nor MWP infringe the asserted patents because they do not include three of the nineteen required claim elements: (1) "player" code that receives web service output; (2) "registry"; or (3) "symbolic names."

Regarding the player limitation, Dr. Almeroth testified, and Express Mobile argued based on his testimony, that WSB and MWP include device-dependent JavaScript player code that branches and accounts for different browser platforms. Because the player is also required to "receive the output symbolic name and corresponding one or more output values and provide[ ] instructions for a display of the device to present an output value," JTX-001 at claim 1, and because GoDaddy's products are browser-based, Dr. Almeroth testified that WSP and MWP infringe because their JavaScript players contain browser detection code that work together with other code to receive inputs and display outputs.

GoDaddy, for its part, argued that JavaScript—the primary programming language used in WSP and MWP—can work on all browsers and is thus not device-dependent-code. This argument was based in part on Kent's testimony that a browser cannot constitute a platform under the Court's construction of the "player" claim term. GoDaddy also argued that Dr. Almeroth confirmed on cross examination that the only specific code segments in each of the files that Express Mobile contends received the web service outputs were not, in fact, device-dependent code.

Regarding symbolic names, Dr. Almeroth testified, and Express Mobile argued based on his testimony, that WSB and MWP use a registry that stores symbolic names, and that those symbolic names are incorporated into HTML code that is sent from GoDaddy's servers to its customers' web browsers. It further argued that the symbolic names stored in the registry were used for evoking web components.

By contrast, Kent testified, and GoDaddy argued based on his testimony, that to be a symbolic name, the name must evoke one or more web components and must be stored in a registry—a claim term that the Court construed as "a database used for computing information." Thus, GoDaddy argued, because the existence of a registry is required for the symbolic name claim element to be infringed (and vice versa)—and because the accused symbolic name does not evoke one or more web components or is not stored in a database—then there is no infringement. Kent explained that what Dr. Almeroth pointed to as symbolic names were actually something called "div IDs," which are randomly generated and thus cannot be stored in a registry. Kent also explained that, to the extent symbolic names or registry exist in WSB or MWP at all, they are kept and stored by the external web services intended to be accessed—like YouTube—and not by GoDaddy.

Discussion

A. Applicable law

For issues that are not patent-law-specific, the Federal Circuit defers to the law of the regional circuit in which the district court sits—here, the United States Court of Appeals for the Third Circuit. Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1248 (Fed. Cir. 2005); see also, In re Cambridge Biotech Corp., 186 F.3d 1356, 1367 (Fed. Cir. 1999) ("we apply our own law with respect to issues of substantive patent law and certain procedural issues pertaining to patent law, but as to nonpatent issues, we apply the law of the circuit in which the district court sits."). The Federal Circuit "review[s] the denial or grant of JMOL under regional circuit law." ActiveVideo Networks, Inc. v. Verizon Commc'ns, Inc., 694 F.3d 1312, 1319 (Fed. Cir. 2012).

B. Standard for JMOL

Express Mobile has moved for judgment as a matter of law (JMOL) on all of its infringement claims, or in the alternative for a new trial. Under Federal Rule of Civil Procedure 50(b), JMOL is proper only if "viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find" for the nonmovant. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (citing Wittekamp v. Gulf & Western Inc., 991 F.2d 1137, 1141 (3d Cir. 1993)). "The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party." Id. (quoting Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)).

To grant JMOL on infringement in favor of Express Mobile, the party with the burden of proof, the Court "must be able to say not only that there is sufficient evidence to support the finding [sought by Express Mobile] . . . but additionally that there is insufficient evidence for permitting any different finding." Fireman's Fund Ins. Co....