Over the last several years, the Federal Circuit has increasingly scrutinized patent litigants’ reliance on “comparable licenses” as a means for calculating a reasonable royalty, including whether the license needs to be apportioned to account for the value of the patented technology.[1] With the Federal Circuit set to address this issue en banc in the pending EcoFactor, Inc. v. Google LLC case,[2] this article examines recent trends in the use of licenses in patent damages, discusses the issues at stake in the EcoFactor case, and provides potential implications of the case for licensing apportionment. The Federal Circuit’s order granting rehearing en banc in EcoFactor asked the parties to address allowance of an expert’s testimony which assigned a per-unit royalty rate to several of the patentee’s licenses.[3] The licenses in question contained a clause stating a nominal royalty rate, but the payment term of the license was for a lump sum and did not refer to the rate or otherwise contain information from which it could be determined whether the nominal royalty rate had been applied to the transaction in question.[4]
This article provides a basic background on the law of apportionment, followed by a discussion of the recent trend toward relying on comparable licenses to calculate a reasonable royalty and the Federal Circuit’s handling of such theories, followed by a discussion of the pending Ecofactor case and its implications for the apportionment landscape.
Patent Law and the Requirement to “Apportion” Damages
Under 35 U.S.C. § 284, a patentee is entitled to “damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer.”[5] The common framework for determining the “reasonable royalty [is] based on a single hypothetical negotiation analysis.” [6] This process “generally requires determining a royalty base to which a royalty rate will be applied.”[7] If the accused product is a part of a multi-component device, “the royalty base should be based on smallest salable patent-practicing unit.”[8] Determining a royalty rate to be applied to the royalty base aims “to discount the value of [the] product’s non-patented features. . .”[9] The royalty base and royalty rate may be adjusted as needed by the facts of a case; however, “the ultimate combination of royalty base and royalty rate must reflect the value attributable to the infringing features of the product, and no more.”[10]
Limiting patent damages to the value attributable to the infringing features is a long-held requirement in patent law dating to at least the late 1800s. In Garretson v. Clark, the Supreme Court held that patentees “must in every case give evidence tending to separate or apportion the defendant’s profits and the patentee’s damages between the patented feature and the unpatented features.”[11] That same case established the venerable entire-market value rule (EMVR) stating that when “the profits and damages are to be calculated on the whole machine, [it must be] for the reason that the entire value of the whole machine, as a marketable article, is properly and legally attributable to the patented feature.”[12] These core concepts were to provide bedrock for patent damages through nearly a century and a half of jurisprudence, including through several major revisions to the U.S. code governing patents.[13] Through these developments, the Federal Circuit has “repeatedly held that when the accused technology does not make up the whole of the accuse product, apportionment is required.”[14]
While the EMVR provides a limited exception for calculating a royalty base of the entire accused product, it only applies “where the entire value of a machine as a marketable article is properly and legally attributable to the patented feature, the damages owed to the patentee may be calculated by reference to that value” as an exception to using the smallest salable patent-practicing unit as the royalty base.[15] Importantly, “[t]he entire market value rule is a narrow exception to [the] general rule.”[16] Accordingly, many damages models attempt to rely on concepts of apportionment to calculate a reasonable royalty, eschewing reliance on the EMVR to rely on other factors such as allegedly comparable licenses. These models often aim to achieve the result of the hypothetical negotiation which “seeks to discern the value of the patented technology to the parties in the marketplace when infringement began.”[17]
Apportionment Based on Comparable Licenses
It is well established that licenses may provide significant data points for the reasonable royalty calculation if they are sufficiently comparable. For example, Georgia-Pacific factors one and two both refer to comparable licenses: (1) “[t]he royalties received by the patentee for the licensing of the patent in suit, proving or tending to prove an established royalty,” and (2) “[t]he rates paid by the licensee for the use of other patents comparable to the patent in suit.”[18] The Federal Circuit has held, however, that the reliance on comparable licenses is still subject to principles of apportionment, with limited exception.[19] For example, if differences exist between the prior license and the current infringement, the licensee “must account for differences in the technologies and economic circumstances of the contracting parties.”[20] Further, it is not sufficient to merely allege a “loose or vague comparability between different technologies or licenses.”[21] However, the Federal Circuit has “never required identity of circumstances.”[22] For example, some licenses may escape the apportionment requirement on the basis that the apportionment is already “built-in” to the terms of the license—that is, if the comparable license is sufficiently comparable, the licensee “can adopt the comparable license’s royalty rate and royalty base without further apportionment and without proving that the infringing feature was responsible for the entire market value of the accused product.”[23] In other words, “[b]uilt-in apportionment effectively assumes that the negotiators of a comparable license settled on a royalty rate and royalty base combination embodying the value of the asserted patent.”[24]
Reliance on “Comparable Licenses”
Over the last several years, the Federal Circuit has examined litigants’ use of allegedly comparable licenses with increased scrutiny, often finding that patentees had not done enough to apportion the license for the purposes of the damages calculation.[25] Whether a license is sufficiently comparable is often a fact-intensive inquiry, with the Federal Circuit digging into the details of the experts’ damage analysis to determine whether the apportionment was sufficient and the license was sufficiently comparable.
Vectura Limited v. GlaxoSmithKline LLC[26]
In 2020, the Federal Circuit examined the comparability of a prior license in Vectura Limited v. GlaxoSmithKline LLC, finding that the license had “built-in” apportionment and that further apportionment was not required.[27] At trial, Vectura offered evidence of a prior license between Vectura and defendant GSK, which included a worldwide non-exclusive license to more than 400 patents which collectively covered the accused devices.[28] Vectura’s expert elected to rely on a royalty rate that was expressly required by the prior license and applied it to the accused products without further apportioning the rate or the product. On appeal, GSK argued that Vectura failed to account for the technical and economic differences between the 2010 agreement and the hypothetical negotiation, stressing that the license covered over 400 patents and arguing that the use of the entire product as the base violated the EMVR.[29]
The Federal Circuit stressed that the “centerpiece” of the 2010 license was a patent directed to coating lactose particles with magnesium stearate.[30] Here, the technology at issue was coating other active particles with the same mixture.[31] Accordingly, the Federal Circuit found that “[t]he 2010 license and the hypothetical negotiation . . . cover ‘roughly very similar technologies’” since the mixtures in the infringing patent were the same mixtures covered in the prior license agreement.[32] The Federal Circuit further noted an admission from GSK’s expert that the 2010 license was “a very close comparable, much closer than you ever find in a patent case.”[33]
The Federal Circuit found that in instances where patent licenses have “built-in” apportionment, a party wishing to rely on it “can adopt the comparable license’s royalty rate and royalty base without further apportionment and without proving that the infringing feature was responsible for the entire market value of the accused product.”[34] Despite the fact that the 2010 license covered over 400 patents, the Federal Circuit found that the 2010 license was so closely comparable, that the “principles of apportionment were effectively baked into the 2010 license.”[35] The key fact underlying this determination appears to have been that “the key component of the 2010 license was the permission to use Vectura’s invention of coating lactose particles with magnesium stearate” and that the infringing particles in the hypothetical negotiation “would have been the very same mixtures covered by the 2010 license.”[36] Accordingly, a key finding of the Federal Circuit in upholding Vectura’s damages theory and finding “built-in” apportionment appears to have been that the prior license covered the same technology as the “centerpiece” and “key component” of the deal.
Omega Patents, LLC v. CalAmp Corporation[37]
In 2021, the Federal Circuit examined the comparability of a license in Omega Patents, LLC v. CalAmp Corporation, reaching the opposite conclusion as the panel in Vectura.[38] In Omega, the jury awarded Omega a $5.00 per unit royalty for CalAmp’s infringement.[39] In this case, Omega presented evidence of 18 of its prior licenses, all of which carried a royalty rate of $5.00 or higher but covered multiple patents and technologies.[40] Omega also presented, however, that its licensing program required a licensing fee of $5.00 per unit regardless of the patent and regardless of the licensed technology.[41] In finding that Omega had not shown “built-in” apportionment, the Federal Circuit faulted Omega’s “one price for all” approach in which Omega sought the same $5.00 per unit fee regardless of patent or covered technology.[42]
As stated by the Federal Circuit, “absent evidence of a comparable license or comparable negotiation to support an identical $5.00 rate for a one-patent license to the [asserted] patent, we fail to see how this patent/claim independent approach accounts for apportionment.”[43] As a result, and unlike the patentee in Vectura, Omega failed to show that its allegedly comparable licenses “attributed a $5.00-per-unit royalty to the value of the [asserted] patent.” Although Omega had failed to show built-in apportionment, the Federal Circuit specifically noted in dicta that Omega could have relied on the licenses “if the license rate were properly apportioned.”[44]
MLC Intellectual Property, LLC v. Micron Technology, Inc[45]
Also in 2021, the Federal Circuit affirmed the exclusion of an expert’s opinion for failing to apportion a comparable license in MLC Intellectual Property, LLC v. Micron Technology, Inc.[46] Here, the patentee’s expert attempted to rely on comparable licenses where it was conceded that “the accused technology does not make up the whole of the accused [product].”[47] Rather than apportion the rate provided in the prior license to the technology at issue, the patentee’s expert contended that “because the licenses are ‘comparable,’ there is de facto no need to apportion.”[48] The district court excluded the expert’s opinion, finding that there was no evidence to support his opinion that the rate he derived from the patent licenses at issues “already accounts for apportionment of non-patented features.”[49]
The Federal Circuit agreed with the district court’s analysis, specifically faulting the expert’s failure to assess “the licensed technology versus the accused technology to account for any differences.”[50] The Federal Circuit explained that in this case, the prior license was not comparable because “there is no evidence regarding the [prior license] agreement that supports [the expert]’s opinion that a specific royalty rate derived from the [prior license] agreement already accounts for the apportionment of non-patented features.”[51] The Federal Circuit further faulted the expert’s failure to account for the other 41 patents covered by the patent versus the one at issue in the hypothetical negotiation.[52]
Apple Inc. v. Wi-LAN Inc.[53]
In 2022, the Federal Circuit again addressed the issue of comparable licenses in Apple Inc. v. Wi-LAN Inc. [54] In the district court action, Apple had previously received a new trial on damages. In the damages retrial, Wi-LAN’s damages expert offered a damages theory that included a “royalty rate of $0.45 per phone based on three comparable licenses that covered the asserted patents.”[55] Each licensee involved phones as the licensed products (the same as the accused technology) and included other patents in the patentee’s portfolio.[56] To arrive at the proposed rate, the expert “set out to adjust for the difference between those licenses and the license that would have resulted from the hypothetical negotiation,”[57] including accounting for the fact that the agreements covered multiple patents and the hypothetical negotiation would only involve the asserted patents. To account for this difference, the expert “sought to establish that, in practice, only a handful of valuable patents drive the royalty rate for a license and the rest of the portfolio is included for a marginal upcharge.”[58] The expert then went on to opine that the two asserted patents were the “key patents” in the three licenses, while the rest of the patents were included “like throwing in the chaff with the wheat.”[59]
To separate the value of the “key patents” from the remaining patents, the expert “reduced the royalty rate by 25 percent.”[60] The jury ultimately “awarded Wi-LAN a royalty rate of $0.45 per phone,” which was the same as proposed by Wi-LAN’s expert.[61]
The Federal Circuit found that Wi-LAN’s expert determination that the asserted patents were key patents was “untethered to the facts of this case.”[62] Contrary to the expert’s opinion, the Federal Circuit determined that the prior licenses “treated the asserted patents as chaff, not wheat” because the patents were not treated as key during negotiations and were merely included in a schedule listing hundreds of patents.[63] The Federal Circuit also noted that reasons given by the expert for singling out asserted patents as “key” also applied to other patents in the license, finding that the expert’s “silence on these equally situated patents is troubling and makes his opinion unreliable.”[64] The Federal Circuit thus concluded that the expert’s opinions were “untethered to the facts of this case” and “should have been excluded.”[65]
Pavo Solutions LLC v. Kingston Technology Co.[66]
In Pavo Solutions LLC v. Kingston Technology Co., the Federal Circuit addressed a patentee’s reliance on a “non-payment term” to establish a comparable royalty rate.[67] Although “both parties’ experts agreed [the prior license] was a comparable license,”[68] Kingston appealed the district court’s allowance of testimony that relied on a representation in the agreement that the royalty amount per unit represented 25% of the licensee’s profits per unit.[69] In particular, the agreement included a representation by the licensee that “the amount of One U.S. Cent ($0.01 USD) per unit is approximately equal to Twenty Five Percent (25%) of [the licensee]’s profits recognized from the sale of a Covered Product, excluding profits attributable to any upgrades or value-added features or services.”[70]
The patentee’s expert relied on the represented rate of 25 percent as a starting point for his apportionment analysis, in which he made various adjustments to account for Kingston’s profits and other differences.[71] For example, the expert “reduce[d] the profit split from 25 percent to 18.75 percent to account for differences in profitability and business models between [the prior licensee] and [the defendant].”[72] This 18.75 percent profit split resulted in a total royalty of 40 cents per unit for the defendant. [73] The jury ultimately “awarded Pavo a 20-cent [per unit] reasonable royalty.”[74] On appeal, Kingston argued that Pavo’s expert’s “methodology is unsound because it relies not on what [the licensor] actually received but, instead, on what Kingston characterizes as a non-binding non-payment term, i.e., the 25-percent-of-profit representation.”[75]
The Federal Circuit disagreed, finding that “the [prior license] agreement itself says that the 1-cent royalty that [the licensor] received represented 25 percent of [the licensee]'s profit for sales of its product, so that representation provided context for the royalty and was not a separate payment provision.”[76] The Federal Circuit therefore concluded that “[u]nder the circumstances, Mr. Bergman’s testimony is not unduly speculative, and the district court did not abuse its discretion in declining to exclude it.”[77]
EcoFactor, Inc. v. Google LLC
EcoFactor, Inc. v. Google LLC is a case that is currently pending en banc review before the Federal Circuit, which is likely to address issues related to the comparability of prior licenses discussed in the June 3, 2024, panel opinion.[78] The panel decision found that the prior licenses were admissible and that they were sufficiently comparable to support a finding of the royalty rate disclosed in the licenses.[79] Specifically, the panel found that despite the fact that the royalty rate came from a statement by the licensor, “[the expert’s opinion concerning the $X royalty rate was sufficiently reliable for admissibility purposes."[80] Notably, Judge Prost had a dissenting opinion, which will be discussed more below.[81] On September 25, 2024, the Federal Circuit issued an order on petition for rehearing en banc, which vacated the June 3, 2024, panel opinion.[82]
The patent at issue in EcoFactor relates to “the operation of smart thermostats in computer-networked heating and cooling systems (‘HVAC systems’).”[83] EcoFactor’s expert, Mr. Kennedy, “relied on three license agreements EcoFactor entered into with third-party smart thermostat manufacturers,” which all contained a royalty rate of $X.[84] Each of the three licenses contained a statement that recites, “WHEREAS, Ecofactor represents that it has agreed to the payment set forth in this Agreement based on what Ecofactor believes is a reasonable royalty calculation of [$X] per-unit for estimated past and [licensee’s] projected future sales.”[85] Mr. Kennedy relied on this $X per-unit royalty, in which he “concluded that the $X royalty rate ‘would be a very reasonable and conservative first offer.’”[86] Google first contended that this clause in the prior license agreement was a “self-serving” statement and the licensing parties did not “actually appl[y] the $X royalty rate.”[87] Google next contested the technical comparability by claiming that “the three license agreements were for EcoFactor’s entire patent portfolio and Mr. Kennedy failed to account for the value of the [infringing] patent within that portfolio.”[88] EcoFactor argued against this by pointing out how Mr. Kennedy explained “downward pressure on the royalty rate” from the “presence of non-asserted patents” would be countered by other upward pressures.[89] One of the upward pressures identified by Mr. Kennedy was that since “the three license agreements reflect a settlement and thus the $X royalty rate reflects a risk that EcoFactor’s patents would be found not infringed or invalid” and that since “this consideration would not be present at the hypothetical negotiation. . . upward pressure [would be placed] on the negotiated rate."[90] Mr. Kennedy also determined that upward pressure would be placed on the negotiated rate since “based on [consumer survey] data . . . the amount of profit per unit that could be attributed to the [infringed] patent . . . was more than double the $X royalty rate."[91] Together, these considerations led the Federal Circuit panel to “conclude that . . . Mr. Kennedy’s damages opinion relied on sufficiently comparable licenses and his opinion sufficiently apportioned the value of the [infringed] patent . . .”[92]
However, Judge Prost dissented in opinion, asserting that “Mr. Kennedy’s $X rate rests on EcoFactor’s self-serving, unilateral ‘recitals’ of its ‘beliefs’ in the license agreements” and is therefore “unreliable.”[93] Judge Prost further explains that “the licenses here are for a lump-sum amount with no record evidence supporting a calculation of a royalty rate” and that it is the “view of both parties . . . that it's [a] lump-sum payment . . . ‘and does not reflect a continuing royalty.’”[94] Judge Prost therefore concludes that “[o]n this record, it’s impossible to establish that these lump-sum payments were calculated using any royalty rate, let alone the specific $X rate.”
In ordering the en banc rehearing, the Federal Circuit ordered that:
“(3) The parties are requested to file new briefs, which shall be limited to addressing the district court's adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), in its allowance of testimony from Eco-Factor's damages expert assigning a per-unit royalty rate to the three licenses in evidence in this case.”[95]
Google has responded to this by addressing both “Kennedy’s [t]estimony [a]ssigning a [r]oyalty [r]ate to EcoFactor’s [l]ump-[s]um [l]icenses” and whether Kennedy’s royalty rate should have been excluded for “[n]ot [b]eing [r]eliably [a]pportioned.”[96] However, the latter of these two arguments was determined to be beyond the scope of the en banc rehearing.[97] Google’s argument regarding the lump-sum royalty pointed out that each of the three licenses “required the licensee to pay a relatively modest lump-sum amount, not a running royalty . . .”[98] Furthermore, Google explains how “nothing in the whereas clauses, or the licenses as a whole, suggested that the licensees shared EcoFactor’s belief that their lump-sum payments were premised on the [$X] rate, or that they had actually agreed to pay [$X] per unit . . . for the licensed technology.”[99] Google concludes that “Kennedy therefore needed additional ‘facts or data,’ Fed. R. Evid. 702(b), to support his conclusion that the licensees have in fact agreed to the [$X] royalty rate.”[100]
Takeaways
The case law surrounding patent apportionment has evolved significantly. Initially, in the Vectura case, the Federal Circuit allowed patentees to rely on built-in apportionment, directly using the rate and base from prior agreements when the technology was key to those agreements.[101] However, subsequent rulings have refined this approach. In Apple, the court clarified that an expert cannot merely assert that patents are key; there must be substantial evidence.[102] The MLC case reinforced the general rule that prior licenses must be apportioned.[103] The Federal Circuit has emphasized that apportionment cannot follow a one-size-fits-all approach; it must be specific to the technology and patent in question.[104] Additionally, while the court upheld reliance on a licensee's representation that a payment rate was a percentage royalty rate, it is now set to address a case where the licensor merely believed it to be a reasonable royalty percentage.[105] The full Federal Circuit's stance on this issue remains to be seen, particularly whether they will align with the panel majority or Judge Prost's dissent which claims “Mr. Kennedy conjured the $X rate from nothing.”[106]
[1] Vectura Limited v. GlaxoSmithKline LLC, 981 F.3d 1030 (Fed. Cir. 2020); MLC Intellectual Property, LLC v. Micron Technology, Inc., 10 F.4th 1358 (Fed. Cir. 2021); Omega Pats., LLC v. CalAmp Corp., 13 F.4th 1361 (Fed. Cir. 2021); Apple Inc. v. Wi-LAN Inc., 25 F.4th 960 (Fed. Cir. 2022); PAVO Solutions LLC v. Kingston Technology Company, Inc., 35 F.4th 1367 (Fed. Cir. 2022).
[2] EcoFactor, Inc. v. Google LLC, 115 F.4th 1380 (Fed. Cir. 2024).
[3] The now-vacated panel decision addressed both testimony regarding royalty rate and the technical comparability of the licenses. EcoFactor, Inc. v. Google LLC, 104 F.4th 243 (Fed. Cir. 2024). Google’s en banc appeal brief addressed both these issues, but the Federal Circuit recently clarified that it only intended to rehear argument regarding the first issue. EcoFactor, Inc. v. Google LLC, 122 F.4th 892 (Fed. Cir. 2024). In an order dated December 4, 2024, the Federal Circuit issued an order stating that Google had exceeded the scope of the order granting rehearing, and that EcoFactor should not address Google’s arguments on the second issue related to technical comparability of the licenses.
[4] EcoFactor at 104 F.4th 243.
[5] 35 U.S.C. § 284.
[6] LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 76 (Fed. Cir. 2012).
[7] Provisur Techs., Inc. v. Weber, Inc., 119 F.4th 948, 957 (Fed. Cir. 2024).
[8] Id. (citing LaserDynamics, 694 F.3d 51).
[9] Ericsson, Inc. v. D-Link Sys., 773 F.3d 1201, 1226 (Fed. Cir. 2014).
[10] Finjan LLC v. SonicWall, Inc., 84 F.4th 963, 976 (Fed. Cir. 2023).
[11] Garretson v. Clark, 111 U.S. 120, 121 (1884).
[12] Id.
[13] Patent Act of 1952, Pub. L. No. 82-593, 66 Stat. 792 (1952); Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011).
[14] MLC Intellectual Property, 10 F.4th at 1373.
[15] Ericsson, 773 F.3d at 1227.
[16] LaserDynamics, 694 F.3d at 67.
[17] Id. at 76.
[18] Georgia-Pacific v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970).
[19] Vectura, 981 F.3d 1030; MLC Intellectual Property, 10 F.4th 1358; Omega Pats, 13 F.4th 1361; Apple, 25 F.4th 960; PAVO, 35 F.4th 1367.
[20] Vectura, 981 F.3d at 1041.
[21] LaserDynamics, 694 F.3d at 79.
[22] VirnetX, Inc. v. Cisco Sys., 767F.3d 1308, 1330 (Fed. Cir. 2014).
[23] Vectura, 981 F.3d at 1041.
[24] Omega Pats., 13 F.4th at 1377 (citing Vectura, 981 F.3d 1030).
[25] MLC Intellectual Property, 10 F.4th 1358 (excluding expert testimony on prior licenses due to lack of evidence showing technological comparability and economic circumstances); Omega Pats., 13 F.4th 1361 (rejecting prior licenses as not comparable because they did not involve similar technology or market conditions); Apple, 35 F.4th 1367 (affirming exclusion of prior licenses due to insufficient evidence of technological and economic comparability).
[26] 981 F.3d 1030, 1041 (Fed. Cir. 2020).
[27] Id.
[28] Id.
[29] Id. at 1039, 1040.
[30] Id. at 1039.
[31] Id. at 1032-33.
[32] Id. at 1041.
[33] Id. at 1040.
[34] Id. at 1041.
[35] Id.
[36] Id.
[37] 13 F.4th 1361 (Fed. Cir. 2021).
[38] Id.
[39] Id. at 1376.
[40] Id. at 1379.
[41] Id. at 1379, 1380.
[42] Id. at 1379.
[43] Id.
[44] Id. at 1380.
[45] 10 F.4th 1358, 1373 (Fed. Cir. 2021).
[46] Id. at 1374.
[47] Id. at 1373-74.
[48] Id.
[49] Id. at 1374.
[50] Id. at 1374-75.
[51] Id. at 1374.
[52] Id. at 1375.
[53] 25 F.4th 960 (Fed. Cir. 2022).
[54] Id. at 964.
[55] Id. at 966.
[56] Id. at 972.
[57] Id. at 972.
[58] Id.
[59] Id.
[60] Id.
[61] Id. at 966.
[62] Id. at 973.
[63] Id.
[64] Id.
[65] Id. at 974.
[66] 35 F.4th 1367 (Fed. Cir. 2022).
[67] Id. at 1378.
[68] Id. at 1379.
[69] Id.
[70] Id.
[71] Id.
[72] Id.
[73] Id. at 1372.
[74] Id. at 1373.
[75] Id. at 1379.
[76] Id.
[77] Id.
[78] EcoFactor, 104 F.4th 243; EcoFactor, 115 F.4th 1380.
[79] EcoFactor, 104 F.4th at 255.
[80] Id. at 254.
[81] Id. at 257.
[82] EcoFactor, 115 F.4th at 1380.
[83] EcoFactor, 104 F.4th at 243.
[84] Id. at 252.
[85] Brief for Appellant at 38, EcoFactor, Inc. v. Google LLC, 23-1101 (Fed. Cir. 2024) (No. 6:20-cv-00075-ADA).
[86] EcoFactor, 104 F.4th at 255-56.
[87] Id. at 253-54.
[88] Id. at 254.
[89] Id. at 256.
[90] Id. at 255.
[91] Id.
[92] Id. at 256.
[93] Id. at 257.
[94] Id. at 258.
[95] EcoFactor, 115 F.4th 1380.
[96] Brief for Appellant at 6.
[97] Ecofactor, 122 F.4th 892 (“Google’s argument at pages 41-58 of its brief exceeds the scope of the court’s en banc rehearing, as its footnote 11 all but recognizes. Ecofactor should not address this argument in its response brief.”).
[98] Brief for Appellant at 37.
[99] Id. at 38.
[100] Id. at 41.
[101] Vectura, 981 F.3d at 1030.
[102] Apple, 25 F.4th 960.
[103] MLC Intellectual Property, 10 F.4th 1358.
[104] Id.
[105] PAVO, 35 F.4th 1367; Brief for Appellant.
[106] EcoFactor, 104 F.4th at 260.
